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.

Practice guidelines are not however the panacea that the Restatement envisions. In the present-day proliferation of guidelines, there are many objectivity and credibility issues, resulting in severe criticism of the guideline promulgation process within the profession. Many guidelines offer inconsistent and conflicting recommendations, contain inherent conflicts of interest and mixed purposes, and some are even blatant attempts to tilt the playing field in favor of defendants.

There is no jurisdictional support for this rule. No case has ever held that practice guidelines constitute a standard of care or that they can be introduced as substantive proof or that their use is different depending on whether they are offered by a defendant or a plaintiff. Nor is there any sound reason or public policy that would support the rule or to believe any guideline is more authoritative than expert testimony, which can be tested in the crucible of the courtroom. The guidelines rule also suffers from practical problems and still requires expert testimony for support. The rule would also violate fundamental principles of equal justice and fairness by compromising the right to cross-examination and by allowing the medical profession to set its own variable standards of care. It is more akin to tort reform that a common law rule of evidence. For those reasons, courts should not accept the invitation to adopt § 6(b).