A recent article in the Journal of the American Medical Association (JAMA) triggers a question as to whether the standard of care to evaluate claims for medical malpractice should be changed. For decades, the New Jersey Model Civil Jury Charge has instructed jurors to measure the conduct of a defendant physician against the “knowledge and skill normally possessed and used by the average physician,” either as a general practitioner or specialist in that field, having regard to the state of scientific knowledge at the time that he/she or she attended the plaintiff. The jurors are further instructed that ordinarily based on common knowledge and without technical training, they cannot determine what conduct constitutes standard medical practice. The standard of practice by which a physician’s conduct is to be judged must be furnished by expert testimony and the jurors should not speculate or guess about the standards of care but rather should determine the applicable medical standard from the testimony of the expert witnesses they have heard during the trial.

The case law has viewed the applicable standards as those which are “generally recognized and accepted by the branch of the profession to which [the physician] belongs as the customary and proper methods of diagnosis or treatment of the physical or mental condition concerned in the inquiry.” The JAMA authors highlight the May 2024 action of the American Law Institute in approving the first-ever restatement of the law of medical malpractice. The JAMA article emphasizes that the new Restatement “shifts away from the traditional reliance on customary practice toward a more patient-centered concept of reasonable medical care.”

The official text of the Restatement (Third) of Torts: Medical Malpractice has not yet been published.  The article quotes Section 5 which provides: “The standard of reasonable medical care is the care, skill, and knowledge regarded as competent among similar medical providers in the same or similar circumstances.” (The authors’ quotations come from Tentative Draft No. 2 which is approved as representing the Institute’s position at this time.) Relevant circumstances for determining reasonable care include:

(1) the patient’s medical condition and medically relevant personal characteristics;

(2) the state of medical knowledge and the treatment options available at the time;

(3) resources available to the provider in the particular location or practice setting;

(4) whether the professional standards described in Subsection (a) differ among groups of providers; and

(5) any representations the provider made to the patient or public about the provider’s level of care, skill, knowledge, experience, or scope of practice.

The distinction between a standard based on customary practices and the standard of reasonable care is essentially the difference between what physicians do and what physicians should do. This has been a matter of debate in both the legal profession and among physicians for many years.  The leading case to which proponents of a patient-centered reasonable care standard point to is Helling v. Carey decided in 1974 by the Washington State Supreme Court.  

The plaintiff in Helling was a 32-year-old woman who was not screened for glaucoma and became blind. The standard of care accepted in the ophthalmology specialty did not call for routine screening of patients under the age of 40 since the risk in that age group was only one in 25,000. Despite the defendant having adhered to this customary practice, the court concluded that the physician was negligent.

Comment c to Section 5 notes that Helling “has been roundly criticized and is regarded as anomalous.” The new Restatement provision does not go as far as Helling and recognizes that customary practice has a role in determining reasonable and acceptable medical conduct. It quotes from a 2000 law review article by Professor Philip Peters who has written extensively on this topic:

Although it continues to be physician-based, the reasonable physician standard potentially differs from a custom-based standard of care in one crucial respect. It asks what a reasonable physician would have done, not what is usually done.

In a more recent article, Professor Philips stated that about forty percent of the states were using reasonable care language. Helling has not been cited in any reported New Jersey decision. However, in Klimko v. Rose, the New Jersey Supreme Court in a dictum had seemed to edge away from the enshrined professional custom for determining the standard of care. While the Court decided this case based on a common knowledge standard, in a footnote it commented:

[W]hen a risk is obvious and a precautionary measure available, an industry or professional standard or custom that does not call for such precaution is not conclusive if, regardless of the standard or custom, the exercise of reasonable care would call for a higher standard, i.e., for precautionary measures.

There does not appear, however, to have been any significant further movement in that direction. For example, in Marshall v. Klebanov, the Supreme Court adhered to the phraseology of “application of accepted medical practice” in describing a physician’s duty of care. But at the same time, the Affidavit of Merit Statute imposes an obligation on one seeking to bring a professional malpractice claim to provide an affidavit that “the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.” The Patients First Act, focused specifically on medical malpractice, requires that an expert providing an affidavit or testimony “on the appropriate standard of practice or care” must have certain qualifications. Is there a meaningful distinction between “accepted” and “acceptable” or “appropriate” or is this just an exercise in the subtleties of semantics?

Section 6 of the new Restatement makes clear that a breach of the standard of care set out in Section 5 is to be established “through the testimony of a qualified expert” unless the res ipsa loquitur doctrine applied, or the breach was a matter of common knowledge. Another exception would be if the healthcare provider admitted a breach of the standard of care. Section 6 also indicates that proof that the healthcare provider complied with a practice guideline established by an authoritative body is sufficient to support, but not compel, a finding that the provider did not breach the standard of care under Section 5. The JAMA article describes the explicit inclusion of practice guidelines as a move toward evidence-based medicine. Significantly, the use of practice guidelines is noted in Comment f to Section 6 to be “asymmetric” in that practice guidelines can only be used to “support compliance with, but not to establish a violation” of the standard of care. This limitation should ameliorate concerns that practice guidelines will be imposed and result in so-called cookbook medicine.

The American Law Institute is a non-profit organization composed of judges, law professors, and practicing attorneys that seeks to clarify and modernize common law principles in its Restatements of the Law series and Model Codes.  In part it not only states what the law is but also what it should be. The American Law Institute is equivalent to the Institute of Medicine or the National Academy of the Sciences. Its publications are repeatedly cited by courts across the country.

In connection with its medical malpractice decisions, the New Jersey Supreme Court has periodically looked to the Restatement of Torts in its variation iterations. For example, in  Buckalew v. Grossbard, as part of its consideration of the applicability of the res ipsa loquitur doctrine to a medical malpractice case, the Court noted the comments on this topic in the Restatement. In Glassman v. Friedel, the Court pointed to the Restatement as reflecting the nearly universal adoption of comparative responsibility for the allocation of tort responsibility.

It remains to be seen what impact the new Restatement standard will have. To date, there are no reported opinions examining the new Restatement concerning medical malpractice.