Malpractice

A Bird’s Eye View on Malpractice

A specialized but important offshoot of negligence practice is professional liability or malpractice. The idea behind professional liability is that those who have special training and expertise should exercise the degree of care in dealing with patients or clients commensurate with other members of the calling.

For example, for the purpose of treating injuries, a doctor is held to the standard of care of other doctors similarly situated rather than the standard of care for someone who has not been to medical school.

It is no secret that malpractice litigation has mushroomed in recent decades. The willingness of injured people to sue professionals has provoked widespread controversy. Injured plaintiffs are no longer willing to sit back and endure careless mistakes to those to whom they entrust their lives and fortunes.

Malpractice
Malpractice victim rushed to the ER.

Defendants and insurance companies claim that increased litigation drives up the cost of services and drives competent professionals out of the business.

Although these questions cannot be answered in this book, the prospective lawyer may want to consider the social policy considerations inherent in this debate. Rhetoric sometimes casts the question in terms of pro- or anti-lawyer sentiment, but this is not an accurate characterization because lawyers represent partisans on both sides of the issue.

The real questions involve how and when injure persons should be compensated for injuries and when they should bear the risk of loss themselves.

The largest segment of malpractice litigation involves doctors. It is not the case that doctors must always be correct, only that they must make reasonable judgments under the circumstances. Doctors are also required to inform patients of the potential risks of a particular proposed course of treatment.

In medical malpractice, as well as other forms of professional liability, expert testimony is usually required to establish the elements of the plaintiff’s case.

In order to show what a reasonable doctor would have done, the plaintiff’s lawyer must introduce testimony from another doctor to that effect. Because of this requirement and the complexity and medical problems themselves, malpractice litigation can be an extremely complicated business.

Malpractice
Malpractice victim in the emergency room.

As with other areas of tort law, insurance is almost always present, and settlement of claims occurs far more often than jury trials.

Although medical malpractice dominates the professional liability field, other professionals are increasingly subject to suits by their clients. Lawyers, accountants, ministers, teachers, and other professionals have successfully been sued for malpractice.

Even in areas that have not traditionally been recognized as professions, individuals holding themselves out as possessing superior expertise have been held to the standards they profess.

Thus, a plumber may hold himself out of the public as knowing more about how to fix pipes than ordinary laymen. He cannot be heard to complain that he did as good a job as an ordinary person when his plumbing job is done poorly compared to the work of other plumbers.

In this environment, everybody who possesses special knowledge or qualifications (and probably charges higher fees accordingly) should understand the professional standard to which they will be held under the law and should obtain insurance to protect against the risk of malpractice.