When putting your life in the hands of others, you are giving them your trust. Doctors, lawyers, and other professionals should carry out their duties with the highest standard of care. Professionals must perform their duties at a higher level than the average worker. Most professionals do their jobs with this higher expectation in mind.
Doctors answer to the American Medical Association (AMA). Attorneys must follow the American Bar Association (ABA) and the Rules of Professional Conduct. They should take time to develop a good professional-client relationship. Unfortunately, not all of them do.
When a professional breaches their client's trust, those who have been betrayed are angry, frustrated, and perhaps even injured by the professional misconduct. This is professional malpractice. Read on to learn what you can do if you're the victim of professional negligence or malpractice at the hands of a professional.
Definition of Professional Malpractice
Most people are familiar with medical malpractice claims. These occur when negligence or misconduct of a healthcare provider injures a patient. However, many other professionals are held to similar standards of care. Attorneys, engineers, and anyone who owes a heightened duty of care to their client is liable for breaching that duty if an injury results.
Professional malpractice, whether medical malpractice or any other kind, consists of these elements:
- A duty of care exists between the professional and the plaintiff
- The professional breaches that duty by an act or failure to act
- The breach is the cause of the plaintiff's injury
- An injury results from the breach
Malpractice differs from negligence based on whether the plaintiff suffered harm. For instance, suppose a patient is allergic to a medication. It may not be medical negligence if the pharmacist notices a prescription error and corrects it. If the patient takes the medication and suffers an allergic reaction, it becomes a medical malpractice case.
Professional Standard of Care
Professionals must meet a higher standard of care because of their training and experience. The "reasonable person" standard applies in a negligence lawsuit: "What would an ordinary person do?" In a professional negligence lawsuit, the question becomes, "What would another professional do?"
Proving Professional Malpractice
If you believe you have been the victim of professional malpractice, you should first get legal advice. While it might be easy to find a good medical malpractice attorney, you may have difficulty if your issue is with another attorney. Some attorneys specialize in attorney malpractice lawsuits, but they are not as well known.
Whether a legal or medical error injured you or a loved one, the process for making your claim is similar. You need the documents from your original case, such as representation agreements, medical records, witness statements, and other paperwork.
The most important thing in a professional malpractice lawsuit is ensuring you file it before the statute of limitations runs out. Most tort claims, including personal injury and malpractice claims, have a very short statute of limitations. In most states, plaintiffs have between one and four years to file a claim.
Medical malpractice lawsuits have longer statutes. These vary depending on when the injury occurred or when the patient could reasonably have discovered the injury. In some states, the statute may be "tolled," or extended, if the patient was an infant or incapacitated. These complicated rules are why a medical malpractice lawyer is essential for these claims.
Professional Malpractice Practice Areas
- Medical Malpractice: A medical malpractice suit is a type of personal injury suit against a healthcare professional when a provider injures a patient. Medical malpractice law is a separate legal industry.
- Legal Malpractice: Legal malpractice occurs when an attorney or other legal professional falls below the standard of care and their client suffers damages because of their misconduct. Legal malpractice includes misconduct by judges, paralegals, and other legal professionals.
- Personal Injury: Most tort claims against professionals resemble personal injury cases. A claim against an insurance broker or realtor has elements of negligence, and a personal injury attorney could provide advice during an initial consultation.
- Insurance Law: All professionals carry malpractice insurance. In a legal action, the insurance company pays the damages and fees in verdicts and settlements.
Medical Malpractice 101
The most common type of professional malpractice suit is the medical malpractice lawsuit. This type of case occurs when a doctor or other medical professional makes a misdiagnosis or other error that leads to injury or wrongful death. People are more likely to notice medical mistakes than legal or financial errors because we trust medical experts with our lives.
When you contact a medical malpractice attorney for a case review, they will begin by going over your medical bills and the doctor's course of treatment. You first need to establish that the doctor owed you a duty of care and that something they did fell below the heightened standard expected of a doctor.
Your attorney may need the assistance of medical expert testimony in your case. Unlike a car accident, where your injuries are clearly tied to the accident, injuries due to medical care are not always so clear-cut. For instance, a doctor must obtain informed consent from a patient before operating. However, in an emergency consent is presumed. The law assumes that people would rather have surgery, even if it is dangerous. Your attorney will call an expert witness for this testimony if necessary.
When You Need a Professional Malpractice Attorney
If you've been the victim of medical malpractice or legal malpractice, you need a good attorney for your legal matters who can examine your case on a contingency fee basis. You want an attorney close to you. It isn't just convenient; malpractice laws vary from state to state, and you need a lawyer who knows the rules in your location. FindLaw can help you with your search.