Professional Malpractice Law (2023)

A professional is a person who holds themselves out to be a professional or expert in some field. “Professional malpractice,” also known as “professional negligence,” is an instance of negligence or incompetence on a professional that injures or otherwise damages a plaintiff.

Professional negligence is a general intent tort. Professional negligence claims involve the breach of duty owed by a professional to their client.

The duty of care in professional negligence claims is the duty to act as an ordinary person would in similar or identical circumstances. For instance, a driver of a vehicle has a duty to drivers, passengers, and pedestrians not to cause harm to them while operating the vehicle.

A professional has a higher duty to their clients to act as a skilled person in similar or the same professional circumstances. This is because the professional has received specialized education or training, such as an attorney or doctor. In both a regular duty of care and higher duty of care, the defendant has a responsibility not to injure the plaintiff.

What Are Some Common Types of Professional Malpractice?

One of the most common examples of professional malpractice is medical malpractice. This form of professional negligence ensues when a medical professional fails to act in the same manner that a reasonable medical professional with the same amount of training and expertise would in the same or similar circumstance. This duty extends to doctors, surgeons, nurses, and hospitals. Yet, professional malpractice can assume many different forms.

Some common examples of professional malpractice include:

• Therapist malpractice
• Hospital malpractice
• Chiropractor malpractice
• Dental malpractice
• Veterinary malpractice
• Accountant malpractice
• Attorney malpractice
• Clergy malpractice
• Architect/Engineer malpractice

Anytime a professional or accredited expert is involved, the possibility of professional malpractice exists. In addition, entire groups or organizations may be held liable for malpractice, as when a hospital is sued for medical malpractice.

Attorneys have a duty of care to clients not to make critical errors a reasonable attorney would not make in the same situation. Contractors and architects have a duty to clients to ensure buildings are built according to common construction practices and government regulations.

Attorney malpractice is not simply when an attorney loses a case for their client. When a client is in a situation where they need an attorney’s help, it usually means the issue has become too complex to resolve.

In some circumstances, an attorney can make an individual’s situation worse instead of better. When individuals hire an attorney to represent them, that attorney is obligated to provide competent and professional services.

If an attorney does not provide competent and professional services, and their client suffers damages, the attorney may be liable for those damages. If an attorney makes a severe error, their client may consider suing them for malpractice.

Attorney malpractice means that the attorney failed to use the ordinary skill and care used by other attorneys handling a similar case, problem, or circumstance. Malpractice does not occur every time an attorney loses a case.

There are many ways in which an attorney may commit malpractice.

A few common examples of attorney malpractice include:

• Blunders: If an attorney makes outrageous mistakes, such as missing court dates or deadlines, fails to submit documents to the court properly, or otherwise behaves irresponsible, the attorney may have committed malpractice;
• Bad checks: If an attorney sends a check from their account for damages the client has won and that check bounces, the attorney may have committed malpractice;
• Settling without their client’s permission: If an attorney settles a case without their client’s consent, the attorney may be liable for malpractice; and
• Failing to contact the client: If the attorney has not returned a client’s phone calls or responded to their letters for an extended time, the attorney may have committed malpractice.

Another typical example of attorney malpractice occurs when an attorney quits working on a case. As a result, the client’s case may be dismissed, or a default judgment may be entered against them.

What Is Required to Prove Professional Malpractice?

In professional malpractice cases, in all jurisdictions, a plaintiff must prove specific elements to show that professional negligence occurred:

• Duty of Care: The professional owed a special duty of care to the plaintiff based on their specialized skill as a professional and their relationship with the client, such as giving them legal advice or providing them with surgical care.
• Breach of Duty: The professional, the defendant in this scenario, violated the duty of care they owed to the plaintiff.
• Causation: The professional was the actual and proximate cause of the client’s injuries.
• Damages: The client must prove the professional’s breach of duty led to damages, such as medical bills for an injury or the loss of a lawsuit.

Professional malpractice cases are usually litigated under a negligence theory. In ordinary negligence cases, the plaintiff must show that the defendant failed to exercise the level of care of a reasonable and prudent person under similar circumstances. However, in professional malpractice cases involving a certain type of profession, the customs of that profession are instead used to set the standard of care.

Therefore, in professional malpractice cases, the plaintiff must show that the defendant failed to exercise the skill and knowledge normally exercised by reasonable professional members of average skill. This failure was the actual and proximate cause of the plaintiff’s injury. This will likely require expert testimony regarding what constitutes a reasonable level of care in the profession.

What Types of Recovery Are Available in Malpractice Cases?

Recovery in professional malpractice suits is typically divided into economic and non-economic damages:

• Economic damages reimburse the plaintiff for actual monetary losses suffered. Also called specific or special damages, this amount is easily quantifiable and includes the cost of medical bills, lost wages, and diminished future earnings.
• Non-economic damages represent compensation for the injury itself and are more difficult to quantify. Also called general damages, this form of recovery requires the jury to assign a monetary value to the injury, pain and suffering, and any resulting disability or disfigurement.

It is important to note that while economic damages are almost always recoverable in medical malpractice cases, many states impose limits on non-economic damages. These states argue that arbitrarily high damages awards drive insurance premiums and discourage the medical practice.

Other states have gone the opposite route and have banned caps on non-economic damages. These states argue that legislatively imposed caps on recovery are arbitrary and violate the constitutional right to a trial by jury. Therefore, it is essential to research the law in your state when you consider whether to move forward with a malpractice claim.

Do I Need a Lawyer for Professional Malpractice?

Professional malpractice claims can sometimes be complex. This is because each profession may involve different standards of care specific to the practice. Also, malpractice laws can vary according to jurisdiction.

Therefore, you may contact a lawyer if you wish to file a professional malpractice lawsuit. If you have been the victim of a professional’s negligence, contact a liability lawyer. The attorney will guide you through the steps of the legal process, such as filing a lawsuit for negligence and representing you at trial.