Chapter 4.B.1: The Custom-Based Standard of Care

In 2024, the American Law Institute finalized a Restatement of Medical Malpractice, as part of its Third Restatement of Torts. Its Section 5 adopts a “reasonable physician” concept of the standard of care – which is informed, but not determined, by “customary” professional practices, when those are shown to exist.

Supplemental Bibliography

On the standard of care in medicine generally, see Ben A. Rich, Medical Custom and Medical Ethics: Rethinking the Standard of Care, 14 Cambridge Q. Healthcare Ethics 27 (2005); Page Keeton, Medical Negligence: The Standard of Care, 10 Tex. Tech. L. Rev. 351 (1979); Joseph King, In Search of a Standard of Care for the Medical Profession: The “Accepted Practice” Formula, 28 Vand. L. Rev. 1213 (1975).

Notes: The Custom-Based Standard of Care

Note 3. Verbal Formulations

On the impact of apology shield statutes, see Anna Mastroianni et al., The Flaws in State “Apology” and “Disclosure” Laws Dilute Their Intended Impact, 29(9) Health Aff. 1611 (2010); David M. Studdert et al., Disclosure of Medical Injury to Patients: An Improbable Risk Management Strategy, 26(1) Health Aff. 215 (Jan. 2007).

Note 5. Is Medical Consensus Real or Imagined?

On the empirical basis for the standard of care, see Symposium, 37 Wake Forest L. Rev. 663 (2002) (thorough discussions of the problem, with multiple critiques and proposals for reform); Tim Cramm, Arthur J. Hartz, Michael D. Green, Ascertaining Customary Care in Malpractice Cases: Asking Those Who Know, 37 Wake Forest L. Rev. 699 (2002); Lars Noah, Medicine’s Epistemology: Mapping the Haphazard Diffusion of Knowledge in the Biomedical Community, 44 Ariz. L. Rev. 373 (2002); William Meadow & Cass Sunstein, Statistics, Not Experts, 51 Duke L. J. 629 (2001); Bryan A. Liang, Medical Malpractice: Do Physicians Have Knowledge of Legal Standards and Assess Cases as Juries Do?, 3 U. Chi. L. Sch. Roundtable 59, 90 (1996).