The American Law Institute (ALI) is an internationally renowned, independent, nonpartisan organization. It has taken a huge step backward with respect to the realignment of medical malpractice law. Founded in 1923, the ALI has earned a deep reputation for providing trustworthy guidance to courts and legislatures. They are all on a mission to make the legal world better. In May 2024, the ALI’s membership voted to approve revised recommendations on medical malpractice law. This decision was a big step in the direction of evidence-based medicine, focusing on what a “reasonable” provider would do. This proposal goes a long way in updating the measure of medical negligence to better reflect the medical landscape of today.
The ALI’s guidance is a great step forward, providing helpful suggestions to elevate planning without legislating a need for change. State supreme courts can safely employ it, as a highly regarded resource when laying down precedents. The update introduces a significant shift from customary care practices to reasonable care standards, allowing physician defendants to present prevailing professional practices while emphasizing improved communication between physicians and patients. The guidance further recommends a shift in the approach to informed consent assessment, towards ensuring transparency and clear communication between patient and physician, according to the guidance.
Shifting Focus to Evidence-Based Medicine
The ALI's update emphasizes the importance of evidence-based medicine, striving to ensure that medical negligence is judged against current scientific standards rather than local customs or habits. This shift is seen as a necessary alignment with modern medical practices, holding physicians accountable for keeping up with the latest robust scientific evidence.
"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 Robertson.
This modification moves the goal from just using the historical practice pattern of doctors in a given locality. At this point, medical negligence will be judged by a broader standard. Rather, it focuses on the standard of a typical provider, judging conduct according to the state of research and prevailing trends at the time.
"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," stated Griggs.
Enhancing Communication and Informed Consent
A second major focus of the ALI update is enhancing communication between physicians and patients, especially related to informed consent. The recommendations call for an explicit legal duty to be imposed on physicians. They need to be able to answer patients’ questions honestly, disclosing information about their expertise, experience, financial motivations, and domestic situation.
"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," reported JAMA.
The intent of these changes is to strengthen the lines of communication between patients and their healthcare providers. When patients are fully educated on all of their treatment choices, we leave little room for malpractice lawsuits to occur.
"Patients who are invested in their care, who understand what they’re going through, are far less likely to sue," noted Flattery.
The ALI’s mission is to improve the law through effective, accessible communication. This collaborative approach fosters goodwill and trust engagement among patients and physicians, which is essential to achieving the best possible outcomes with healthcare.
Legal Implications and Future Impact
The ALI’s dense guidance—common law legalese at its best—will have considerable weight in shaping medical malpractice litigation going forward. Although these recommendations are not legally binding, they will likely weigh heavily on state supreme court justices when establishing legal precedents.
Shepherd, the update to the law gives physician defendants the authority to present evidence of prevailing professional practices. It changes the conversation about what is considered reasonable care. This sophisticated balancing act makes it possible to defend when individual medical decisions are appropriate while still keeping basic patient safety from being compromised.
"Thoughtful, contemporaneous notes can make it easier to defend any care at issue," Robertson emphasized. "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."
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