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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Nora Freeman Engstrom

Reporter, Torts: Miscellaneous Provisions, Torts: Medical Malpractice

Nora Freeman Engstrom is a professor at Stanford Law School. She is a nationally recognized expert in both tort law and legal ethics.  Her work explores the day-to-day operation of the tort system and particularly the tort system’s interaction with alternative compensation mechanisms, such as no-fault automobile insurance, the Vaccine Injury Compensation Program, and workers’ compensation.  Professor Engstrom has also written extensively on trial practice, complex litigation (including MDLs), attorney advertising, contingency fees, tort reform, and law firms she calls “settlement mills”—high-volume personal injury law practices that heavily advertise and mass-produce the resolution of claims.

Michael Green

Reporter, Torts: Miscellaneous Provisions, Torts: Medical Malpractice

Michael Green is a nationally and internationally recognized torts teacher and scholar. In August 2018, he received the ABA's Robert B. McKay Award for outstanding contributions to the field of torts. He has also received the William L. Prosser award from the AALS and the John G. Fleming Memorial Prize for Torts Scholarship jointly with Professor William C. Powers, Jr., of the University of Texas. Green served as Co-Reporter for the Restatement (Third) of Torts: Liability for Physical and Emotional Harm and for Apportionment of Liability with Professor Powers. They were jointly named the R. Ammi Cutter Reporters by the ALI from 2011 to 2015.

Mark Hall

Reporter, Torts: Medical Malpractice

Mark Hall is the Fred D. and Elizabeth L. Turnage Professor of law and the Director of Health and Law Policy program at Wake Forest Law. Professor Hall is one of the nation's leading scholars in the areas of health care law, public policy, and bioethics. The author or editor of twenty books, including Making Medical Spending Decisions (Oxford University Press), and Health Care Law and Ethics (Aspen), he is currently engaged in research in the areas of health care reform, access to care by the uninsured, and insurance regulation. Prof. Hall has published scholarship in the law reviews at Berkeley, Chicago, Duke, Michigan, Pennsylvania, and Stanford, and his articles have been reprinted in a dozen casebooks and anthologies. 

Jennifer Morinigo

The American Law Institute