Customary vs. Reasonable Standard MedMal
Kris Gates
Let’s Talk Revenue for Preventive Care | #1 Supporter of “Preventive Pay” | Rethink Healthcare to be accessible, affordable, and high-quality
According to JAMA, about one-third of physicians can expect to be sued at least once across the course of their careers. In 2024, the American Law Institute (ALI) revised the legal standard for assessing medical negligence. The updated standard from the ALI shifts away from the traditional reliance on customary practice toward a more patient-centered concept of reasonable medical care. (Journal of the American Medical Association)
Medical malpractice payouts by state for the year 2022, as reported by the National Practitioner Data Bank (NPDB):?
Customary Standard
JAMA: The prior restatement of tort law, issued in 1965, explained: “One who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.”
Shift from Customary to Reasonableness Standard?
JAMA: The restatement from the ALI centers medical negligence on reasonable care rather than on customary care reads: “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 restatement reassures physicians that its competency-based standard of reasonableness does not require above average or even average care. The comments accompanying the restatement observe that “those who have less than median or average skill may still be competent and qualified.”
Customary Standard of Care:
Examines the practices and procedures that are generally accepted and followed within the medical community for a specific procedure or treatment.
Reasonable Physician Standard of Care:
Looks at whether a doctor acted reasonably under the circumstances as a competent medical provider.
Why Custom Standard Is Sometimes Preferred
The decision of reasonableness can lead to courts to over-regulating the medical profession as the court would be deciding what is "reasonable" and thus interfering with the medical profession.?
Advertising Impact to Standard of Care?
To date legal cases have not generally centered around advertising as setting a new standard of care. Such as health systems that advertise the "best care" or "high-quality care" or "superior care" or promise a higher standard than a competitor.
Kris Gates, [email protected]