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The American Law Institute’s first ever Restatement of Medical Malpractice law provides an opportunity to examine how generic private law doctrine shapes itself to the distinctive core features of medical care. Various Restatement provisions reflect tort law’s recognition of key features of medical care that justify regarding medical liability as a distinct branch of negligence law. Tort law does so, however, in a somewhat anachronistic manner that regards medical care encounters in a highly individualized fashion -- one that sees patient care encounters as primarily dyadic (simply between doctor and patient), rather than being embedded in complex institutional, professional, regulatory, and economic structures. To some extent, this simplification helps determine legal obligations and enforce patient protections. In other respects, however, tort law has not yet adequately reflected fundamental changes in health care finance and delivery over the past generation or two. The Medical Malpractice Restatement considers these changes and responds to some of them, but not to others. Because a Restatement is, at its core, a synthesis of existing doctrine rather than a law reform enterprise, it is limited in the extent to which it can aim to improve or modernize law. Embedded in the Restatement are a number of key passages that point in potentially constructive directions that future evolution of tort doctrine might take. Other points of doctrinal rigidity, however, might require more overt law reform efforts to overcome.
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