Torts: Medical Malpractice Is Approved

Torts: Medical Malpractice Is Approved

PHILADELPHIA – The American Law Institute’s membership voted today to approve Restatement of the Law Third, Torts: Medical Malpractice. Led by Reporters Nora Freeman Engstrom of Stanford Law School, Michael D. Green of Washington University School of Law, and Mark A. Hall of Wake Forest University School of Law, the project was launched as part of Restatement of the Law Third, Torts: Concluding Provision (now “Miscellaneous Provisions”), in January 2019. Beginning with the drafts prepared for the 2023 Annual Meeting, the Medical Malpractice portion of the project was produced separately as the Restatement of the Law Third, Torts: Medical Malpractice.

“As work on the then-named Concluding Provisions progressed, it became clear that the material on medical malpractice was sufficiently complex, significant, and voluminous to warrant independent treatment,” said ALI Director Diane P. Wood. “As a result, last year we spun off the provisions dealing with medical liability into a distinct volume, Restatement of the Law Third, Torts: Medical Malpractice.”

The Restatement of Torts is nearly as old as the Institute itself. The Institute was founded in 1923, and that same year the ALI began working on its first four Restatements: Agency, Conflict of Laws, Contracts, and Torts.

“Since the continued reassessment of the law and the Restatements is at the core of the Institute’s function, a Second Restatement of Torts was completed in 1979, and we are now engaged in the Third Restatement,” added Director Wood. The Institute has published four components of the latest Restatement, which has been broken up into a set of volumes focused on particular areas, including Products Liability; Apportionment of Liability; Liability for Physical and Emotional Harm; and Liability for Economic Harm. Intentional Torts has received its final approval and is being prepared for publication. The Torts provisions within the Property Restatement are well underway, as are distinct projects on Remedies; Defamation and Privacy; and Miscellaneous Provisions. When these ongoing projects are completed, the ALI will have produced a body of work that entirely supersedes the Restatement Second of Torts.”

Restatement of the Law Third, Torts: Medical Malpractice focuses on distinct liability issues that arise when a patient seeks or obtains medical care. It focuses on the doctrinal core that distinguishes medical liability from other areas of tort law, leaving to other portions of the Restatement Third of Torts coverage of the many generally applicable topics and doctrinal elements that can arise across a range of tort actions, including medical malpractice.

The project is organized into fifteen sections:

§ 1. Patient and Provider Defined
§ 2. Patient-Care Relationship
§ 3. Duties to Patients and Others
§ 4. Liability for Breach of Duty
§ 5. Standard of Reasonable Medical Care
§ 6. Establishing Breach of the Standard of Care
§ 7. Res Ipsa Loquitur
§ 8. Lost Chance
§ 9. Agreements Affecting Medical Liability
§ 10. No Waiver of Liability
§ 11. Agreements to Take a Nonstandard Approach to Care
§ 12. Informed Consent: Duty and Exceptions
§ 13. Informed Consent: Factual Cause and Scope of Liability
§ 14. Medical Institutions’ Duties
§ 15. Vicarious Liability

“As we wrap up our work, we gratefully acknowledge the invaluable contributions of the many members who have assisted us in this challenging endeavor,” said Reporters Engstrom, Green, and Hall in a joint statement. “We are particularly indebted to the many dedicated Advisers and MCG members, who have volunteered their time and expertise to this effort—and to the Council members who have suggested revisions to key portions of our draft with diligence, attention, and focus.”

The Reporters, subject to oversight by the Director, will now prepare the Institute’s official text for publication. At this stage, the Reporters are authorized to correct and update citations and other references, to make editorial and stylistic improvements, and to implement any remaining substantive changes agreed to during discussion with the membership or by motions approved at the Annual Meeting. Until the official text is published, the drafts approved by the membership are the official position of ALI, and may be cited as such.

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About The American Law Institute
The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and improve the law. The ALI drafts, discusses, revises, and publishes Restatements of the Law, Model Codes, and Principles of Law that are influential in the courts and legislatures, as well as in legal scholarship and education. By participating in the Institute’s work, its distinguished members have the opportunity to influence the development of the law in both existing and emerging areas, to work with other eminent lawyers, judges, and academics, to support the rule of law and the legal system, and to contribute to the public good.

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