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.
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
- Expert Witnesses and the Preparation of Affidavits of MeritExperts have the task of proving that a claim has merit through an Affidavit of Merit, and this may have a direct connection to a medical malpractice suit or when the medical device used causes injury to the patient. Through this affidavit, the expert explains that the claim has sufficient strength to proceed through trial or to a hearing with a judge.
- Suing Nursing Homes for Abuse or NeglectA nursing home can be held legally liable for damages that its residents suffer due to abuse or neglect. Loved ones may be able to file a lawsuit against the nursing home for causing harm to a family member. However, it is important for the family to understand the dynamics involved in this type of lawsuit and the legal basis for claims against a nursing home.
- Potential Defendants in Medical Device CasesWhen the victim of a medical device case needs to pursue legal action for compensation, he or she must do so with a specific person or company, and this could lead a variety of case types based on the potential defendants. With the help of a civil lawyer filing a lawsuit to seek the compensation necessary for recovery, it is possible to identify the liable party.
- Joining a Mass Tort Case for Defective Medical DevicesWhen the defective medical device harms enough individuals, these groups may band together and create a mass tort case to pursue financial recovery to make them whole. Through communication and contact with legal professionals, each person may add to the case and increase the possible damages based on the specific issue.
- How a Negligent Diagnosis Can Affect a PatientWhen a doctor makes a negligent diagnosis, the consequences for the patient can be devastating.
- False Claims and Defective Medical DevicesFalse claims that deal with medical devices and defects could occur through no less than two types of incidents where either the patient makes a false claim with a device that is not truly defective, or the manufacturer initiates a false claim. No matter which of these situations arises, it is important to pursue legal action for compensation from the false claim.
- Warning Signs of Nursing Home NeglectMany of the country’s seniors live in nursing homes and rely on caregivers to take care of their basic needs, such as feeding them, helping them mobilize and taking their medication. However, many nursing homes are understaffed or find it difficult to retain qualified people for the job.
- Failure to Diagnose Issues and Dental MalpracticeWhen the dentist is unable to diagnose the tooth or mouth issue correctly and appropriately, he or she could become involved in a dental malpractice suit. If he or she engaged in any type of negligence or a breach of his or her duty to care for the patient by the standards he or she follows, it is possible to succeed in winning compensation awards.
- Dental Malpractice Caused by Embedded Broken InstrumentsWhen surgery is necessary to adjust or resolve a matter in the mouth, it is possible for the dentist to leave some part of his or her equipment in the jaw when he or she is not as attentive as needed. It is in these incidents that a dental malpractice suit may arise, and the patient may seek full compensation for the matter and any additional procedure to fix it.
- Defective or Substandard Dental ImplantsConstant or continual pain is usually one of the primary symptoms of dental implant defects or other dental complications after a procedure when the patient needed work completed in his or her mouth. Understanding what symptoms could occur after defective or substandard procedures is important to ensure that resolution of the problem happens.
- 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.