Malpractice Law

Guide to Professional Malpractice Law




What is Malpractice Law?

Malpractice law provides the rules and procedures for holding professionals responsible for the harm that results from their carelessness. People depend on doctors, lawyers, accountants, and other experts to perform their jobs prudently. When mistakes occur, the consequences can be devastating. Fortunately, the law provides those who have been harmed with an opportunity to seek justice by proving their case in court and collecting financial compensation from the professional. All states provide a means for malpractice victims to pursue recourse, but some jurisdictions place caps on the amount of money a victim can recover.

The Concept of Negligence

At the most fundamental level, malpractice lawsuits are allegations that a professional service provider has acted negligently. Negligence is defined as the failure to act as a reasonably prudent person under the circumstances, resulting in harm to another individual. In the context of malpractice law, negligence occurs when the services provided fall below the standard of care ordinarily provided by members of that profession. Again, the factual circumstances surrounding the incident will be taken into consideration.

For example, consider a situation in which a doctor happens upon the scene of a motor vehicle accident. While waiting for an ambulance to arrive, the doctor administers first aid to an individual injured in the crash, but the effort is unsuccessful. The individual’s surviving family members sue the doctor for malpractice, claiming that the doctor’s efforts were substandard. In such a case, the doctor’s efforts will not be measured against those of other professionals giving first aid in a fully-equipped medical facility. Rather, the doctor’s efforts will be measured against how a reasonably prudent doctor would perform at the scene of a roadside accident, given access to the same materials, under the same weather conditions, and so on.

Even giving due regard for the factual circumstances, professionals do make mistakes. Common types of malpractice in the medical field include failing to properly diagnose a condition, neglecting to warn a patient about the dangers of a procedure, or making errors during treatment. In the legal field, attorneys and the staff they oversee can commit malpractice by losing client files, failing to understand or apply the law correctly, overlooking the consequences of a proposed course of action, or missing the applicable statute of limitations (deadline for filing a lawsuit).

Medical Review Panels

A number of states do not allow injured patients to file suit against their doctor without first submitting their claim to a medical review panel. These panels are formed on a case-by-case basis. They normally consist of several physicians, and perhaps an attorney or other professional as well. Under a typical system, the plaintiff selects one physician, the defendant selects a second, and together the first and second physicians select a third. The idea is to end up with a panel that will decide the matter impartially.

The panel’s job is to review the evidence and make an initial determination as to whether malpractice occurred. Even if the panel decides the doctor acted properly, the patient is allowed to bring the claim in court, although the panel’s findings will be introduced as evidence. Because the findings will be given significant weight when the case goes to trial, injured patients must realize the process is much more than a technicality. Attorney representation is essential.

Litigating a Malpractice Case

Like other tort lawsuits, the majority of malpractice claims are resolved through negotiation. After the paperwork initiating the suit has been filed with the court, the parties exchange discovery (documents and other evidence relevant to the case), and take depositions of the plaintiff, defendant, and other witnesses. Using this information, each side determines an amount they think the case is worth. From that point, it is a matter of the attorneys negotiating a settlement agreement. If they are unable to do so, the case will proceed to trial.

Plaintiffs who take their malpractice claim to trial stand to win large damage awards, often much larger than the defendant was willing to offer during settlement talks. Of course, the trade off is that the plaintiff may lose, and recover nothing. For those willing to take the gamble, the likelihood of success may depend on the performance of the expert witness hired by the plaintiff. Experts play a key role in malpractice trials because the technical nature of the evidence make it difficult for the jury to comprehend without an expert in the field taking the stand and explaining the evidence in common, everyday language.

Do Not Delay in Hiring an Attorney

If you are suffering because of the errors or omissions of a professional you trusted, it is time to contact a malpractice attorney. Remember, strict deadlines apply in malpractice cases, and if you delay, it may become impossible to seek compensation. Contact a lawyer today for assistance.

Copyright HG.org

 

Know Your Rights!

Malpractice Law - US

  • ABA - Commission on Ethics 20/20

    Welcome to the ABA Commission on Ethics 20/20 web site. Created by ABA President Carolyn B. Lamm in 2009, the Commission will perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments. Our challenge is to study these issues and, with 20/20 vision, propose policy recommendations that will allow lawyers to better serve their clients, the courts and the public now and well into the future.

  • DOJ - Departmental Ethics Office

    Welcome to the Departmental Ethics Office website. On this website you can find the various laws and regulations governing the conduct of Department of Justice employees. We have included general information on the Executive Branch Standards of Conduct, the conflict of interest statutes, the Department's supplemental standards of conduct and various other ethics rules, regulations and policies. We have organized the ethics rules by subject which you can access through the left navigation menu. A click on underlined citations or phrases will provide you with more information.

  • Federal Tort Claims Act (FTCA)

    Federal Tort Claims Act (FTCA) cases are varied. Those cases handled by section litigators include traditional problems in tort law, such as medical malpractice and other personal injury litigation, as well as seminal issues arising in areas as diverse as regulatory agency activities, wild animal attacks in national parks, and professional malpractice. The section also handles litigation brought by persons who contracted AIDS allegedly due to government negligence in the course of blood transfusions or other medical procedures. Section attorneys protect the United States from exposure to excessive liability, and from second-guessing of governmental policy decisions through tort litigation.

  • Malpractice / Torts - Wikipedia

    This article addresses torts in United States law. As such, it covers primarily common law. Moreover, it provides general rules, as individual states all have separate civil codes. There are three general categories of torts: intentional torts, negligence, and strict liability torts.

  • Medical Malpractice Law

    Local statutes must be consulted for restrictions that apply to actions against health care providers. Many states have enacted special medical malpractice statutes as a response to what some contend is another "medical malpractice crisis," said to have been brought about by an increase in the number of medical malpractice actions, substantial jury awards, and a resulting increase in liability insurance rates for health care providers. The requirements of these statutes must be satisfied before a medical malpractice plaintiff can get his or her claim before a jury.

  • Negligence - Overview

    Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances. In order to establish negligence as a Cause of Action under the law of torts, a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required standard of conduct, the defendant's negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.

  • Pyschology - Therapy, Ethics, Malpractice, Forensics and Critical Thinking

    The site provides free access to a variety of articles from journals such as American Psychologist (currently 10 from this source); British Medical Journal;Journal of Consulting & Clinical Psychology; Clinical Psychology: Science & Practice; Psychology, Public Policy, & Law;American Journal of Psychiatry; International Journal of Law & Psychiatry; and Professional Psychology: Research & Practice -- as well as the complete contents of a book (Children, Ethics, & the Law).

  • Strict Liability - Overview

    In tort, there are two broad categories of activities for which a plaintiff may be held strictly liable - possession of certain animals and abnormally dangerous activities. Additionally, in the area of torts known as products liability, there is a sub-category known as strict products liability which applies when a defective product for which an appropriate defendant holds responsibility causes injury to an appropriate plaintiff.

Organizations Related to Malpractice Law

  • American Medical Association

    Our mission at the American Medical Association is to promote the art and science of medicine and the betterment of public health.

  • Committee's Lawyers’ Professional Liability Consortium (LPLC)

    The Committee's Lawyers’ Professional Liability Consortium (LPLC) provides a place where practicing lawyers, insurance professionals, academics and risk managers meet to exchange views, share knowledge and learn the latest information about the law of lawyering.

Articles on HG.org Related to Malpractice Law

  • When is a Surgical Error Malpractice?
    Every surgery – even the most minor – poses the risk of medical error. But does every surgical error constitute as medical malpractice? Malpractice is essentially negligence.
  • Expert Witnesses Provide Testimony in Perinatal Malpractice Cases
    Perinatal malpractice usually involves injuries to the baby before, during or after the child has been born. These could occur through the methods used to assist the infant out of his or her mother, the procedures utilized when he or she resides within the mother’s body or the care taken with the baby once he or she has been removed.
  • When Is a Physician Responsible for Stark Law Violations?
    The Ethics in Patient Referrals Act or Stark Law was passed in part in 1989. Since its passage, the law has been modified frequently, most notably in 2010 with the passage of the Affordable Care Act.
  • Veterans Administration Patients at Risk
    The Office of the Inspector General (OIG) for Veteran’s Affairs has released a preliminary report detailing the inadequate administration of the VA Medical Center in Washington, D.C.
  • What Physicians Should Know About Restrictive Covenants
    A restrictive covenant is a contract between an employee and employer that protects the employer from future losses when the employee leaves.
  • How Fentanyl Prescriptions Can Be Medical Malpractice
    Fentanyl is a potent narcotic drug. It is chemically similar to morphine but 80 to 100 times stronger, and is a synthetic opioid. Typically it is used to treat serious or chronic pain in patients facing serious illness, and is administered through a patch, injection, pill or even lozenge.
  • Can My Lawyer Refuse to Continue with My Case Unless I Pay in Full?
    Sometimes during the middle of representation, a lawyer and client may reach an impasse due to billing issues. In some cases, a lawyer may be permitted to withdraw from a case and stop work. However, there are special rules about this matter that must be closely followed in order to avoid ethical issues.
  • Heart Surgery Infections and Malpractice
    The Centers for Disease Control and Prevention (CDC) has growing concerns that approximately 600,000 heart surgery patients could be infected with a potentially life threatening bacteria. The risk stems from contaminated heating and cooling devices commonly used during open heart surgery.
  • Injuries Resulting from Breast Cancer Treatment
    An alarming study by a Danish group claims that physicians, in their rush to treat women diagnosed with breast cancer, may actually do more harm than good.
  • Chicago's Public Hospitals Paid Out More than $160 Million for Medical Malpractice Cases
    Two of Chicago’s public hospitals have shelled out more than $160 million in the last several years, indicating that medical malpractice is a far too common problem.
  • All Ethics Law Articles

    Articles written by attorneys and experts worldwide discussing legal aspects related to Ethics including: legal ethics, legal malpractice, premises liability, product liability, professional liability, professional malpractice, professional responsibility.




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