“Do You have a Professional Malpractice Claim?” From the Plaintiff’s Perspective

A professional commits malpractice when they are negligent or incompetent. Under the strict definition of professional malpractice, it only applies to the conduct of lawyers and doctors. However, generally speaking, it applies to professionals that have specialized training and are licensed by governmental agencies, claims against accountants, architects, stock brokers, financial advisors, engineers and other medical providers, i.e. dentists, chiropractors, nurses and therapists should also be considered. An alternative definition for those claims is “professional negligence.”

When a professional chooses to render specialized services, they are required to exercise the skill and knowledge that is applied by other members of that profession under similar circumstances. This is often referred to as the standard of care.

The standard of care can be breached by the professional’s misconduct – failure to perform a required task or lack of skill – not knowing what is required. For example, an accountant who fails to prepare a client’s tax return would be liable for failing to fulfill his professional duty. Similarly, an accountant who is unaware of a change in the tax code and renders incorrect advice is liable for not having the requisite skill and knowledge of the profession. Typically, the professional is also responsible for the mistakes of their staff.

Once the former patient or client demonstrates the breach of the standard of care, they must demonstrate the misconduct caused harm. Poor representation by itself is not enough. Mistakes that do not alter the outcome or result are usually not actionable. In other words, if the outcome is the same, even with an error or professional’s lack of skill, there is no claim. This concept, known as proximate cause, focuses on a “but for” test for the professional’s mistake. In other words, had that person done their job, I would not be where I am today.

Conversely, a bad or negative result does not, by itself, prove malpractice. Just because your expectation is not met, does not mean that you have a case. Also, in most jurisdictions, unless it is a medical claim, the standard of care is minimum standard. For example, in a legal malpractice claim, the lawyer would be judged on how a reasonably trained lawyer would handle the case not how the best lawyers in that particular area of law would have acted.

Doctors and lawyers typically carry malpractice insurance policies to cover mistakes. Other professionals misconduct is typically covered under the “errors and omissions” policies.

If you are considering a professional malpractice claim, you should consult a specialist in that area as soon as possible. Statute of limitations (the time in which a lawsuit must be brought) vary from state to state and can be as short as one year. Additionally, there may be different statutes of limitations based upon the profession.