Regarded as Competent: Medical Knowledge and Professional Acceptance in the Restatement (Third) of Torts

Rationale, Aims and Objectives The Restatement (Third) of Torts: Medical Malpractice defines the standard of reasonable medical care as ‘the care, skill, and knowledge regarded as competent among similar medical providers’ and lists the state of medical knowledge among the circumstances relevant to it. Its drafters justify a professionally determined standard on epistemic grounds: lay factfinders cannot evaluate medical methods from scratch. This paper asks how, on the Restatement's account, medical knowledge constrains professional judgements of competence when the two conflict. Methods Conceptual and doctrinal analysis of the official text of §§ 5 and 6, their comments, illustrations and Reporters' Notes, read against the drafters' stated rationale. Results The Restatement expressly incorporates medical knowledge and moves the standard from prevailing practice to professional judgement of competence. It gives little explicit guidance on when professional acceptance that the available evidence does not support ceases to protect a practice. The commentary states its ‘ultimate question’ in terms of what professionals believe would be competent; the respectable‐minority doctrine protects approaches that a respectable group of professionals accepts; and the state of medical knowledge appears among the circumstances of a case rather than as a constraint on the criterion. The respectable‐minority doctrine assigns the plaintiff the burden of persuasion on whether an approach is acceptable, but the commentary does not say what acceptability consists in when authoritative evidence tells against a practice that some providers accept; the guideline provisions of § 6 address compliance but not this converse conflict. Conclusions The drafters' epistemic rationale supports a requirement that professional acceptance be justifiable in light of the evidence of benefit and harm, foreseeable risks, available alternatives and the patient's circumstances. Courts deciding whether to adopt § 5, ruling on summary judgment and instructing juries should treat that requirement as part of the standard and determine when evidentially unsupported professional acceptance ceases to protect a practice. This does not require conclusive evidence for every case or the abolition of expert testimony.