Is It Time to Overhaul Medical Malpractice Law?

About a quarter century ago, Virginia resident physician Daniel Merenstein, MD, spoke with a 53-year-old patient about prostate cancer screening. The man didn’t receive a prostate-specific antigen (PSA) test and was later diagnosed with an advanced form of the disease. He then filed a medical malpractice claim against the physician’s residency program.

In court, the patient’s lawyer argued that the physician should have simply ordered a PSA test without discussion, as was common practice. The physician’s legal team countered that he followed evidence and guidelines, not tradition, and gave his patient a say in the decision. As Merenstein later wrote in JAMA, jurors didn’t buy it.

“The jury sent a message to the residency that they didn’t believe in evidence-based medicine. They also sent a message that they didn’t believe in the national guidelines, and they didn’t trust the shared decision-making model,” Merenstein wrote. He added: “In our legal system, the physicians who are slow to change are the winners.”

Now, an influential legal organization has declared that medical malpractice law needs to evolve to discourage these kinds of verdicts.

The American Law Institute (ALI) argues that the legal system should focus more on evidence-based medicine and less on customary practice when determining whether doctors are responsible for adverse outcomes. The ALI also suggests changes in how informed consent is evaluated.

The recommendations of the ALI, which has been called “the legal equivalent of the National Academy of Medicine,” aren’t mandatory. Still, legal specialists tell Medscape Business of Medicine News that the institute has significant influence and that its guidance reflects the realities of modern medicine.

“It’s bringing the law in accordance with evidence-based medicine — so we can hold doctors to that standard and expect they will be keeping up with the latest and most robust scientific evidence,” said Christopher T. Robertson, PhD, JD, MA, professor of Health Law, Policy & Management at Boston University School of Public Health, Boston, who advised the ALI regarding its new recommendations.

Why Does the ALI Matter?

The ALI is an independent, nonprofit organization founded in 1923 that provides guidance to courts and legislatures on improving the law. State supreme court justices may rely upon the ALI’s guidance when they set precedents, Robertson said.

“They want to make sure they’re not just seeing the world through a pinhole,” he explained. “They want the big picture: What other states doing? What are the experts saying? That’s where the ALI comes in as a credible, trusted intermediary.”

In May 2024, ALI’s membership approved an update to medical malpractice law, technically known as a “restatement.” The update gained attention in February 2025 when JAMA published a report co-authored by Robertson summarizing its findings.

What Did the ALI Say About Standard of Care Expectations?

The ALI update is densely written in legalese. However, as the JAMA report explains, the update “centers medical negligence on reasonable care rather than on customary care” — meaning it assesses what a “reasonable” provider would do instead of what other providers typically do.

Additionally, the update “no longer factors in deference to the practice habits of physicians within any given locality or community,” the report said.

Amy S. Griggs, JD, a McLean, Virginia, attorney who represents patients in medical malpractice cases, said the ALI guidelines align “with state law and practice.”

“Judging against habit and custom is not adequate. One doctor’s habit and custom can fall below the standard of care if it fails to consider up-to-date studies, trends, and research,” she said. “Judging medical negligence against an evidence-based standard is much safer for patients and is fairer to all. A patient walking into a medical center should expect care from a reasonably prudent healthcare provider who is educated on the safest modern medical studies and treatment modalities.”

What Is a ‘Customary Care’ Defense?

Physicians have long been able to defend against medical malpractice claims by asserting, “I did it in the customary way,” explained Michael A. Moroney, JD, a medical malpractice attorney with the Flynn Watts firm in Parsippany, New Jersey, who represents physicians and healthcare institutions. “That typically would be enough to let the physician off the hook.”

Robertson noted that this approach is unusual in American law. “For nearly a century, courts have emphasized the importance of objective science,” he said. However, medical professionals “got a pass and merely had to follow the customary practices of the profession.”

“That’s because lawyers and judges like didn’t really understand what doctors do, and juries couldn’t be expected to understand what doctors do,” Robertson said. “They’re a special, learned profession all their own, so they were allowed to define their own customs.”

Critics argue that relying on tradition can lead to “defensive medicine,” in which providers order excessive tests to avoid litigation.

In a 2004 JAMA article, Merenstein — whose residency lost the prostate cancer testing malpractice suit — wrote that “during that year before the trial, my patients became possible plaintiffs to me, and I no longer discussed the risks and benefits of prostate cancer screening. I ordered more laboratory and radiological tests and simply referred more. My patients and I were the losers.”

Now, the ALI recommends moving “away from the defensive practice of medicine to embrace metrics, like how we see sports like baseball moving towards analytics,” Moroney said. However, he cautioned that overreliance on metrics in both sports and medicine could mean “you lose the feel for the game” and no longer make decisions based on instinct.

Medical Tradition Doesn’t Matter Anymore?

Not exactly. The ALI update still allows physician defendants to highlight “prevailing professional practices.”

Robertson had hoped the ALI would move even further toward supporting evidence-based medicine over tradition and custom, but he said the end document represented a compromise.

What Else Do the New Recommendations Say?

The ALI guidance also focuses on physician-patient communication.

The JAMA report states that the recommendations impose “an explicit legal obligation on physicians to answer patient questions truthfully, including about the physician’s own skill, experience, financial interests, and circumstances, even if affirmative disclosures are not required.”

Regarding informed consent, the recommendations suggest shifting the legal focus from what a hypothetical “reasonable” patient would do to what the individual patient in the case would have done if given a choice: “To recover damages for lack of informed consent under the standard in the restatement, patients must prove only that they would have chosen an alternative treatment course and that it would have been reasonable for them to do so.”

Catherine J. Flynn, JD, an attorney with the Flynn Watts firm, represents physicians and other providers in medical malpractice cases. Flynn said the law in her state doesn’t view informed consent in this way. Juries focus on what a “reasonable” patient would have done, she said, not the specific patient in the case.

What Should Medical Providers Take From This?

Ben Flattery, JD, a medical malpractice attorney representing hospitals and an assistant vice president with TransRe, a reinsurance company, emphasized the importance of thorough notetaking.

“Document your thought process. If you have good documentation showing that your decision was based on all the elements of evidence-based medicine, good judgment, and the best possible outcome, then that’s the best way to defend a case,” he said.

Don’t wait to write things down. “Thoughtful, contemporaneous notes can make it easier to defend any care at issue,” he said. “While notes written after an adverse event has occurred are equally valid, they can be subject to greater scrutiny in the context of a medical malpractice claim.”

As for communication with patients, Flattery advised providers to be direct and honest.

“Before moving on to the particular course of treatment, make sure the patient understands what the treatment is and why it is being recommended,” he said. “Patients who are invested in their care, who understand what they’re going through, are far less likely to sue. To the extent that you can help a patient understand why you’re doing something, and that it makes sense, and that they agree, goes a long way into establishing good will.”

Griggs agreed: “If physicians only focus on one thing, improving communication is a good starting point. Patient safety starts with effective communication. Most medical malpractice claims involve communication breakdowns — either with the patient or among medical providers.”

Randy Dotinga is an independent writer and board member of the Association of Health Care Journalists.