What is Malpractice


Malpractice, also known as professional negligence, is a type of legal claim that arises when services provided by a professional do not meet the standard of care required under the circumstances, resulting in injury to the professional's client or patient. Although the term "malpractice" may bring to mind medical malpractice, a malpractice case may be pursued against a wide range of professional service providers.

What Is Malpractice

Malpractice occurs when a professional fails to meet the standard of care expected under the circumstances, and as a result causes an injury to a client. The basic elements of a malpractice claim are:

  1. There is a professional relationship between the professional and the client claiming injury;
  2. The professional was negligent in providing services to the client;
  3. The negligence violated the governing standard of care; and
  4. The professional's negligence caused an injury to the client.

Standard of Care

The standard of care owed by a professional is normally the level of care that would be provided by a similarly situated professional who was addressing a substantially similar situation. To put it more simply, not all mistakes made by a professional will constitute malpractice. If the professional abided by expected professional standards, even if with the benefit of hindsight a different approach might have avoided the injury, the professional did not commit malpractice.

For medical malpractice cases, the standard of care is typically defined as whether the level of care provided was consistent with the care that would be expected from a reasonably prudent health care professional, but with additional focus on the healthcare provider's specialty and the standard of care in the healthcare provider's community. The standard of care may thus be different for a medical specialist as opposed to a generalist, for emergency medical treatment as compared to non-urgent care, for smaller clinics as compared to larger hospitals, or for urban areas as compared to rural communities.

Necessity of Injury

To present a valid claim for malpractice, the client or patient making the claim must also prove injury. If no injury results from the professional's negligent act or omission, no matter how extreme or dramatic the mistake, a malpractice action cannot succeed.

For example, if a doctor misdiagnoses a condition but the condition is adequately treated or cured based upon the doctor's prescribed course of treatment, the patient will not have been injured by the mistake and thus cannot succeed in a medical malpractice claim.

Similarly, if an accountant were to file the wrong tax return for a client, but were to immediately file a corrected return and thereby preventing any harm or injury to the client, the accountant's mistake would not have caused injury and thus would not support a malpractice claim.

Who Can Be Sued for Malpractice

The most common professionals who may be targeted by a malpractice action are:

  • Medical professionals: Doctors may be targeted by medical malpractice claims, as may hospitals, clinics and medical practices. Medical malpractice claims may also be brought against other health professionals, including nurses, dentists, pharmacists, physical and occupational therapists, medical technicians, and mental health professionals.
  • Laywers: Lawyers and law firms may be accused of legal malpractice in the representation of their clients.
  • Accountants: Accounting services may be accused of professional negligence in their preparation and handling of their clients' accounts, financial documents and tax returns.
  • Financial planners: Financial planners and stockbrokers may be accused of professional negligence for their failure to properly advise their clients or to properly manage their clients' accounts.
  • Architects: Architects and other construction professionals may be accused of professional negligence for their work in the design, construction and renovation of buildings and other structures.

How to Make a Malpractice Claim

Malpractice law can be a very complicated area of law in which to build and prove a case, and the complexity is particularly pronounced in medical malpractice law, where laws are highly complex and are different in each state. Professionals often carry malpractice insurance, and defense attorneys can be tenacious in battling malpractice claims. Even when a claim seems simple or obvious, most people will find that they need to retain a lawyer to assist them with the claim.

Sometimes a professional or their insurance company will concede that a mistake occurred and try to settle a claim without litigation. However, in the majority of cases a professional will deny a mistake, deny that any alleged mistake violated the governing standard of care, deny that the mistake resulted in damages, or all three, such that it becomes necessary to file a lawsuit.

State law may require that a professional accused of malpractice receive advance notice of the client's intentention to file a malpractice lawsuit. Particularly for medical malpractice claims, additional pre-litigation requirements may be imposed. For example, a patient may be required to submit an affidavit from a qualfied expert who is willing to testify that the defendant violated the governing standard of care and caused injury to the patient. The patient may be required to participate in pre-claim or post-claim case review, mediation or arbitration proceedings. As laws are different in each state it is important to scrutinize state law, as what may seem like a minor procedural error can potentially cost a plaintiff any right to recovery.

In most malpractice cases it is necessary to introduce expert witness testimony in order to establish the governing standard of care, and that the defendant professional violated that standard of care. Finding and hiring a qualified expert witness can be daunting, and the fees the expert may charge will often be substantial.

In a small number of malpractice cases, the doctrine of res ipsa loquitur ("the thing speaks for itself") may apply, meaning that the professional's error was so obvious that no expert testimony is required to support the case. For example, if a doctor is supposed to amputate a patient's gangrenous left foot, and instead removes the patient's healthy right foot, the case would almost certainly be allowed to proceed without an expert witness on standard of care. However, most malpractice cases are significantly more complex.

Copyright © 2017 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Dec 7, 2017.