Professional Malpractice
Professional malpractice claims can be raised against individuals in many different fields, such as health care professionals, lawyers, engineers, architects, or contractors. Victims of medical malpractice can face serious medical problems or at the most extreme, could die as a result of malpractice. Legal malpractice victims could face financial problems or suffer the loss of important legal rights due to malpractice. Generally, professional malpractice arises when a professional (such as a doctor or lawyer) has a duty of care to a client and fails to exercise that care, causing the individual to sustain injuries or damages. The basic requirements for proving a malpractice claim vary depending on the type of malpractice and the state law that applies. However, victims of malpractice generally must demonstrate the following to establish liability:
- Duty: The professional owed the individual a duty of care. For example, a doctor undertakes the medical care of a patient or a lawyer agrees to represent a client.
- Breach: The professional breached his or her duty of care, by failing to conform to the relevant standard of care. For example, a doctor fails to diagnose a basic injury or a lawyer fails file a case within the applicable statute of limitations.
- Causation: The professional's actions caused the plaintiff to sustain damages. For example, a doctor’s misdiagnosis of an injury led the injury to become permanent, or a lawyer’s failure to file a case within the statute of limitations results in a client being unable to move forward with their lawsuit.
- Damages: An individual suffers injuries and/or loses money because of the professional's malpractice.
Demonstrating breach usually requires expert testimony to show the applicable standard of care and how that standard was not met. Most professional malpractice cases hinge on demonstrating the breach element of malpractice. Thus, selecting a respected, professional expert witness to testify represents one of the most important steps that an experienced professional malpractice attorney must undertake. Professional Malpractice Damages Victims of professional malpractice may be able to pursue a variety of damages against a professional, depending on the type of malpractice (which vary between medical and legal malpractice) and the applicable state law. The following are examples of compensatory damages that could be available: -
Economic: Damages include specific monetary values, such as lost wages, medical expenses, other expenses, or what a client would have won if legal malpractice was not committed. -
Non-economic: Damages based on the physical and psychological harm suffered, such as loss of vision, loss of a limb, disability causing reduced enjoyment of life, loss of consortium, or emotional distress. Punitive damages may also be awarded in cases involving extreme malpractice. Malpractice victims should also keep in mind that some states may already have or be in the process of passing laws to limit recovery for damages, such as Michigan which has capped non-economic damages for medical malpractice cases. Professionals liable for medical malpractice could include any health care provider, such as a doctor, dentist, nurse, or therapist. Liability could also extend to hospitals, clinics, or other health care organizations or corporations based on whether a vicarious liability theory is applicable under the circumstances, and if that theory exists in a given state. The Institute of Medicine of the National Academy of Sciences has previously reported that nearly 100,000 annual deaths are the result of medical errors. Medical malpractice generally happens when a health care professional fails to provide competent medical care for a client. States vary on the specific requirements that a victim must meet. The requirements, beyond the general malpractice requirements discussed above, include the following: - A medical professional establishes a relationship of care for the patient.
- A medical professional fails to provide care equal to the standard of care. The standard is the care, skill, and treatment that, under the circumstances, would be considered acceptable by reasonably prudent similar health care providers (Ex. a cardiologist is compared to other cardiologists). States vary as to what geographic area this standard is based on (such as national or local). Some states may also require doctors to use any special knowledge that they personally have when providing care.
- The medical care results in an injury to the patient.
- The patient suffers an injury.
Typical examples of medical malpractice include some of the following:
- Leaving a surgical tool in a patient’s body
- Surgery on the wrong organ, wrong site surgery or wrong side surgery
- Use of unsanitary surgical utensils
- Organ puncture or perforation
- Prescribing the wrong medicine
- Failure to diagnosis a disease
- Failure to properly treat a disease
- Sexual abuse of the patient
- Errors in usage of anesthesia
- Failure to notice fetal distress
- Failure to treat an infection arising from a surgery
According to the ABA Center for Professional Responsibility, Survey on Lawyer Discipline Systems, in 2006, more than 10,000 attorneys faced some form of sanction from their local disciplinary agency. Some of those grounds for sanctions could also have been the basis for legal malpractice lawsuits. In addition, the Insurance Information Institute has reported that annually more than 35,000 people file claims of malpractice against attorneys. Legal malpractice generally occurs when an attorney fails to provide competent legal representation to a client. Individual states differ on the requirements that a client must meet. The requirements generally, beyond the general malpractice requirements discussed above, include the following:
- The existence of an attorney-client relationship.
- Legal representation that falls below the standard of care. The standard of care usually is based on an attorney using the skill, diligence, and prudence that an ordinary lawyer commonly possesses and exercises under same or similar circumstances.
- Legal representation is the cause of an injury to the client.
- The client suffers an injury (such as financial loss or a wrongful criminal conviction).
- Demonstrating that the outcome of the client’s case would have been different, if a different attorney had represented the client in the same case, as is required in California.
Common examples of legal malpractice include some of the following:
- Improper drafting of a contact
- Failing to file a lawsuit within the statute of limitations
- Improperly drafting documents submitted to a court
- Malicious prosecution (bringing an unfounded claim lacking in evidence)
- Giving legally incorrect legal advice to a client
- Wrongful conviction
- Attorney disregards conflict of interest
- Attorney breaches the terms of his or agreement with a client
Individuals should keep in mind that attorneys do have the freedom to exercise their professional judgment in representing clients, such as choosing the legal strategy or what witnesses to call at trial. Simply losing a case is insufficient grounds for a client to bring a legal malpractice claim. As discussed above, an attorney’s actions will be considered within the context of what an ordinary attorney, of ordinary skill, would have done in representing the same client. Thus, because of the intricacies of a malpractice claim, the expertise of an experienced legal malpractice attorney is needed to analyze a legal malpractice case. Seek Qualified Legal Representation Professional malpractice, especially incidents of medical or legal malpractice require specialized knowledge to navigate the complex issues presented by such malpractice. Both the merits of the case and your attorney’s understanding of the laws applicable to professional malpractice will determine the likelihood of success for a given case. It is highly recommended that a victim of medical or legal malpractice act promptly, so that your attorney can preserve evidence, obtain important documents, and file a lawsuit prior to the expiration of the applicable statute of limitations. The attorneys at the National Justice Coalition have extensive experience in successfully litigating malpractice claims. Please contact us us to have any questions answered or to schedule a confidential consultation. |
