In Defense of Using Medical Practice Guidelines Defensively: A Response to Stewart and Peck

The American Law Institute (ALI) recently approved its first ever Restatement of Medical Malpractice law. One Restatement subsection embraces the position that an authoritative clinical practice guideline, if admissible and sufficiently relevant, can be prima facie evidence of a provider's compliance with the standard of care. This article responds to a forceful critique of that position by two of the Restatement's advisors, who are nationally esteemed members of the plaintiff's bar. They argue that caselaw does not support this provision, that it is unsound public policy, and that the provision is unfair because it does not afford the same prima facie proof status to plaintiffs' use of practice guidelines.This article addresses each of those critiques. It starts with the observation that, at bottom, this opposition is fundamentally at odds with the primary governing principle of professional liability, namely, that professional standards have greater force in medical liability cases than do industry standards in general negligence cases. Because professional standards determine professional negligence, a relevant clinical practice guideline that speaks with authority for a relevant segment of medical professionals, if admissible, should be sufficient to support a jury finding of non-negligence for a doctor who complies.The same conclusion does not apply, however, when a plaintiff presents a single relevant guideline that a physician failed to follow, for the simple reason that it is often the case that more than one approach can reasonably apply to a given clinical situation. Also, guidelines often set ideal rather than minimal standards. Thus, this provision's differential effect is not fundamentally unfair. Instead, it flows directly from a plaintiff's burden of establishing professional negligence, much like numerous other conventional legal rules can affect opposing sides of a case differently.As accomplished advocates, it is no surprise these authors have made the strongest possible case against any enhanced legal status for defensive use of exculpatory practice guidelines. Thoughtful inspection and reflection reveal, though, that their analysis significantly misstates or over-states the Restatement's position, and so their attacks are mostly misdirected. If this Restatement's position were truly as radical or poorly considered as these authors portray, the ALI likely would not have adopted it. Nevertheless, engaging with this critique can better elucidate reasons that courts might view this Restatement provision as well-considered.