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An overview on Professional Malpractice, Legal
Malpractice, and Medical Malpractice.
Malpractice, a wrongful act by a physician, lawyer, or other
professional that injures a patient or client. The patient or
client may file a civil lawsuit to recover damages (money) to
compensate for the injury.
The professions in which malpractice can occur require specialized
training and study, and professionals in these fields must exercise
a high degree of judgment in performing tasks generally beyond
the skill of laypeople. In addition to law and medicine, these
professions include dentistry, accounting, engineering, and architecture.
Medical or legal malpractice lawsuits are far more common than
those involving other professions.
Malpractice is a special type of tort. A tort is a civil wrong
that permits an injured party to sue for compensation for damages
caused by the harmful conduct of another person. One common type
of tort arises when a driver fails to exercise due care (ordinary
care) while operating an automobile and causes an accident that
results in injury to others. Malpractice and other torts have
these three features in common: they involve a person who has
a duty of care toward others, a failure to exercise due care,
and an injury or other monetary damages caused by that failure.
Because malpractice cases involve members of a profession, many
of the issues that arise are more complex than the issues in other
tort cases. When an automobile driver runs a red light or speeds,
the driver clearly has created a danger for other people on the
highway and will be held liable if the dangerous driving results
in an accident. In many malpractice cases, however, it is not
as clear what the exercise of due care means. Often there are
alternative ways to treat a patient or handle a legal issue. In
a malpractice action, an expert in the field may have to testify
about whether the conduct of the defendant (the professional)
fell below what is expected of a professional in that field. It
may also be difficult to establish whether the conduct of the
defendant caused the injury to the plaintiff (the party seeking
damages). A medical patient's health may have declined or a client
in a lawsuit may have lost a case, regardless of whether the doctor
or lawyer actually made an error. The plaintiff in a malpractice
case must prove that the injury would not have occurred in the
absence of the allegedly improper conduct.
Medical malpractice is the most common type of malpractice lawsuit.
It typically involves the negligence of a physician while diagnosing
or treating a patient. In the past, courts decided whether a physician's
conduct was negligent by comparing that conduct with the practices
in the locality where the doctor worked or with the practices
of his or her field of medicine. These comparisons made it difficult
for injured patients to win malpractice lawsuits. Other doctors
who could describe the practices in the locality were often reluctant
to testify against their colleagues. More recently, courts have
applied a national standard for professional conduct when determining
whether malpractice occurred.
A small proportion of medical malpractice cases result from the
intentional misconduct of the physician, such as improperly touching
a patient who is unconscious. However, plaintiffs who are harmed
in such a manner typically charge that the physician committed
battery, an intentional tort, rather than alleging malpractice.
A physician may also commit malpractice by doing something without
obtaining the patient's informed consent. For example, a doctor
may commit malpractice by giving a patient an experimental drug
without first informing the patient about potential risks or side
effects, and then obtaining the patient's consent to use the drug.
Most physicians purchase insurance to protect themselves from
the high cost of malpractice lawsuits. In the mid-1970s and again
in the mid-1980s, insurance companies sharply increased the cost
of medical malpractice insurance. Many reasons for the rising
costs were suggested. Some people blamed the insurance industry,
claiming that insurance companies charged excessive amounts. Others
claimed that lawyers were to blame because they brought far too
many medical malpractice actions, including many that had no merit.
Still others charged that the rise in litigation was the result
of increasingly complex and specialized medical practices associated
with the development of new medical procedures, equipment, and
In response to the rapid rise in insurance costs (and the resulting
increase in the cost of health care), many states passed legislation
designed to reform tort law. These reforms provided various restrictions
on medical malpractice suits, including limitations on the amount
of damages that could be awarded or the fees that an attorney
could receive. Some states adopted procedural restrictions, such
as shortening the time period in which a plaintiff is permitted
to file a claim or requiring plaintiffs to submit their claims
to screening panels that review the claims and attempt to resolve
disputes prior to litigation.
These reform statutes have generated controversy. A number of
state supreme courts have found various measures to be in violation
of state constitutional protections. For example, courts have
invalidated laws that seriously limit the rights of plaintiffs
to file suit or that severely limit damage awards. As the rise
in medical insurance costs tapered off at the end of the 1980s,
the pressure to reduce malpractice actions also diminished.
The other common type of professional malpractice lawsuit occurs
when a client sues his or her former attorney. A large number
of legal malpractice actions involve claims that an attorney representing
a client in court made an error that harmed the client. The plaintiff
must prove that the prior trial would have had a different result
if the attorney had not acted negligently. This may require the
plaintiff in the malpractice action to retry the prior case as
part of the legal malpractice lawsuit-a complex and time-consuming
Identifying the party to whom an attorney is responsible can
be a controversial issue in legal malpractice actions. Traditionally,
attorneys are obligated to protect their clients and no one else.
In many cases, however, the improper conduct of an attorney may
injure someone other than the client. For example, if an attorney
improperly drafts a client's will, the heirs-rather than the client-will
be harmed. Courts have begun to show more willingness to hold
attorneys liable for injuries to third parties whose damages could
have been anticipated. Rules governing who can sue for legal malpractice
damages vary widely between states.
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