ABSTRACT
Psychedelic-assisted therapy is advancing rapidly toward clinical legitimacy in the United States. The Food and Drug Administration has granted Breakthrough Therapy designations to psilocybin and MDMA, several states have established regulated access frameworks, and major research institutions have invested hundreds of millions of dollars in psychedelic science. Yet the legal infrastructure governing malpractice liability for this emerging treatment modality remains almost entirely undeveloped. This Article identifies three structural challenges that psychedelic-assisted therapy poses for traditional malpractice doctrine. First, the standard-of-care inquiry confronts an emerging profession that lacks settled credentialing, licensing norms, and practice standards, making expert testimony unreliable and the custom-based standard largely indeterminate. Second, causation analysis breaks down when the treatment intentionally alters the patient’s evaluative framework – the cognitive architecture through which the patient assesses whether an outcome constitutes harm. Third, the damages calculus faces a paradox when the alleged injury is identity transformation that the patient may, after the shift, regard as beneficial. This Article argues that these are not transitional problems that will resolve as the field matures; they are structural features of a therapy that deliberately modifies the baseline against which malpractice doctrine measures deviation, causation, and harm. The Article proposes doctrinal adaptations-including prospective consent architectures, tiered standard-of-care frameworks, and temporal damages models-that would allow tort law to govern psychedelic therapy without collapsing the doctrinal coherence that makes malpractice liability meaningful.
Palmieri, Michael, Malpractice without a Baseline: Tort Liability and the Structural Paradoxes of Psychedelic-assisted Therapy (March 7, 2026).
Leave a Reply