Darryl Weiman, M.D., J.D.

The American Law Institute (ALI) is a group of lawyers, judges, and other legal scholars whose mission is to improve, modernize, and clarify the law to promote the administration of justice. Established in1923, it is a private, independent, non-profit and their writings have great weight in the legal community. The ALI publishes Restatements of the Law, Principles of the Law, and Model Codes, to “express the law as it should be.”

In 2024, the American Law Institute (ALI) wrote new guidelines for medical malpractice which shifted from the “reasonable physician” to a more patient-centered standard which relied more on evidence-based practice guidelines. As mentioned above, these new standards have considerable respect in the legal community, and it is reasonable to conclude that some state legislatures and supreme courts will follow the recommendations to incorporate “evidence-based medicine” into malpractice law. This is a significant shift which may cause major legal problems for physicians.

Medical malpractice is currently predicated on the “reasonable practitioner” standard. Although there is variability among the states, a practitioner would not be liable for malpractice so long as their actions complied with what a reasonable provider would do if faced with the same or similar circumstances.

Here is an example of what might happen with the ALI recommended changes. I was at a continuing legal education meeting where the speaker, a well-known plaintiff’s attorney, stated that deviations from practice guidelines should be construed as medical malpractice. He used the example of the Advanced Cardiac Life Support (ACLS) acronym for the acute coronary syndrome. The acronym is MONA, which stands for morphine, oxygen, nitrates, and aspirin. According to this attorney, a physician who did not follow these guidelines is liable for malpractice if the patient was harmed.

As physicians, we all know not to give morphine to a patient with an allergy to that drug, and we may not be willing to give it to a patient with low blood pressure. We may be reluctant to start oxygen on a patient with severe chronic obstructive pulmonary disease, as the oxygen saturation may be his driver of respiration and providing oxygen may lead him to stop breathing. With similar reasoning, we may not give aspirin to a patient who is allergic to the drug or if gastrointestinal bleeding is an issue. Also, we know not to give nitrates to a patient who is taking Viagra or Cialis because, as the commercials warn us, this can cause a precipitous drop in blood pressure.

With current medical malpractice law, the burden of proof is on the plaintiff who must show, with a preponderance of the evidence standard, that the practitioner did not do what a “reasonable practitioner” would do if faced with the same or similar circumstances. If the recommendations of the ALI are to be used, the burden of proof would shift to the practitioner

who would need to convince the jury that the guidelines should not be applied in his case. This is a significant shift in burden.

Granted, the guidelines have disclaimers, usually at the beginning of the publication, which acknowledge that the guidelines are written for the ideal patient presenting with that disease entity and it is up the physician taking care of the patient to decide whether to use the guidelines. Plaintiffs are likely to downplay or ignore these disclaimers. The result will be to shift the burden of proof to the physician to convince a jury that following guidelines written by experts in the field was the wrong thing to do in his case. Good luck with that.

It becomes more problematic when it comes time for the judge to instruct the jury as to what standard of care it should use in deciding the case. Instead of customary care as the standard for reasonableness, the guidelines will be used to define what the law says is “reasonable.” It is foreseeable that the injured plaintiffs will use the guidelines as the best scientific evidence of what the physician should have done.

Expert witnesses for the defense used to opine whether the practitioner did what a reasonable practitioner would do if faced with the same or similar circumstances. That was the law. With the guidelines, by law, now defining the standard of care, defense experts will need to argue that the law should not be followed in this case. Under the “preponderance of the evidence” burden of proof needed in most malpractice actions, this may make it more difficult for the practitioner to win his case; juries instructed to follow the law, are unlikely to ignore that instruction.

Instead of practicing defensive medicine, physicians and other practitioners will be inclined to follow guidelines even though it is rare to find the ideal patient with any disease entity. Knowledge, education, training, experience, and skill will no longer be the lynchpins of medical judgment. Computers may soon be telling us how to take care of our patients. In fact, they already are.

If a practitioner decides not to follow the guidelines, he should document his reasoning in the medical records. With this documentation, the court will be inclined to believe that the physician was doing what he believed to be best for his patient, i.e., he was acting reasonably. This will go a long way in helping him win the case.