What is “Professional Malpractice”?
“Professional malpractice” is any type of malpractice that is committed by persons who holds themselves out to be a professional or expert in some field. A professional is a person who engages in a trade or practice that requires rigorous qualification by the state or other certifying authorities.
Generally speaking, malpractice involves the breach of a duty of care to the person, resulting in their injury or harm. This may include various types of harm, including physical, emotional, or mental harm, or even financial losses. Some states place limits on the amount of damages that can be claimed in a malpractice case.
What are Some Common Types of Professional Malpractice?
The most common form of professional malpractice is medical malpractice. However, professional malpractice can assume many, many different forms. In fact, there may be as many types of professional malpractice as there are professions.
Some common types of professional malpractice include:
- Real Estate
Basically, anytime a professional or accredited expert is involved, the possibility for professional malpractice exists. Also, entire groups or organizations may be held liable for malpractice, as when a hospital is sued for malpractice
What is Required to Prove Professional Malpractice?
Professional malpractice is usually litigated under a negligence theory. Proving negligence involves the following elements:
- Duty: For professionals, the standard of care is that which is exercised within the specific profession or area of expertise.
- Breach of Duty: The professional must have acted in a way that breached or disregarded the duty of care owed to the client. If the professional instructed another person to perform the act, they could still be held liable under vicarious liability laws.
- Actual Injury: The breach of duty must be the actual cause of the person’s injury
- Provable Losses: The injury must result in losses that can be clearly calculated according to current market value standards
Thus, if any of these elements cannot be proven, the professional cannot be held liable for malpractice. For example, even if the professional breached their duty of care, they cannot be held liable if the breach did not result in a measurable injury.
What is the Standard of Care for Professionals?
The main difference between professional malpractice lawsuits and other types of negligence lies in the “Duty of Care” mentioned above. In normal negligence cases, the duty of care is that of a “reasonable person” standard. This means that ordinary persons who are not professionals must act in the way that a reasonable person would under the circumstances.
However, in professional malpractice claims, the duty of care is the standard which is applied in the person’s area of practice. This is a higher standard of care than the reasonable person standard.
For example, an accountant would be held to the standards of care that apply to all practicing accountants. Obviously, they would not be held to standards applied in a different profession, such as medical standards.
In addition, if a profession is a certified expert or specialist in a subspecialty, they will be held to the standards of the individual area of specialty. This may involve an even more specific standard of care. For instance, a plastic surgeon is a special type of medical doctor. They would then be held to the standard of care for plastic surgeons, and not just those of doctors in general.
Do I need a Lawyer for Professional Malpractice?
Professional malpractice claims can sometimes be complex. This is because each profession may involve different standards of care that are specific to the practice. Also, malpractice laws can vary according to jurisdiction. Therefore you may wish to consult with a lawyer if you wish to file a professional malpractice lawsuit.
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Last Modified: 08-25-2011 02:44 PM PDT
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