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1 results

  • A BRIDGE TOO FAR: Practice Guidelines in the New ALI Medical Malpractice Restatement

  • Larry S. Stewart, Robert S. Peck
  • Journal:
    American Journal of Law & Medicine / Volume 51 / Issue 1 / March 2025
    Published online by Cambridge University Press:
    08 May 2025, pp. 1-26
    Print publication:
    March 2025

  • The new American Law Institute Medical Malpractice Restatement posits a novel rule in § 6(b) that would authorize the use of medical-practice guidelines as a standard of care for medical-malpractice litigation. However, it would only be a “safe harbor” shield; guidelines could not be similarly used by plaintiffs as a sword. For defendants, the rule would transform what heretofore has been indisputably hearsay evidence into prima facie proof that would serve as a substitute for expert testimony, and which would be sufficient to defeat a malpractice claim. Plaintiffs wishing to use practice guidelines would be relegated to the “learned treatise” exception of the hearsay rule.