Negligent Referral and Malpractice Liability

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 Can You Be Held Liable for a Negligent Referral?

Yes, there are numerous ways in which an individual can be held liable for a negligent referral. For example, if a lawyer negligently refers a case or client to another lawyer, the lawyer who made the referral may be held liable.

Because of this, it is extremely important for lawyers and other professionals to conduct their own due diligence investigations before referring their cases or clients to other professionals. A professional has a duty of care to investigate the individual to whom they are entrusting their client.

The same duty of care applies to the fields of real estate, accounting, medicine, and others.

What Are the Legal Issues Associated With Negligent Referral Liabilities?

There are several legal issues that are associated with negligent referral liabilities. The duty of care is the responsibility to act as an ordinary individual would in the same or similar circumstances.

For example, drivers have a duty of care to other drivers, passengers, as well as pedestrians not to cause them harm while operating the vehicle. Professionals have a higher duty to their clients to act as skilled professionals would in similar or the same professional circumstances.

This is because the professional has specialized training and education, such as doctors and attorneys. With both a regular duty of care and higher duties of care, the defendant had a duty not to injure the plaintiff.

Another example of a legal issue is the fiduciary duty of a doctor. A fiduciary is an individual who has an ethical or legal relationship of trust that is owed to another party. When an individual has a fiduciary duty to another individual, the fiduciary has to conduct themselves according to the benefit of the other individual.

The individual to whom the duty is owed is often referred to as the beneficiary or the principal. One of the most important legal duties of a fiduciary is the obligation to act for the benefit of the beneficiary and not the fiduciary.

What Is Professional Negligence?

Professional negligence, also referred to as professional malpractice, is a general intent tort that involves the breach of duty that is owed by a professional to their client. A professional is an individual who holds themselves out to be an expert or professional in some field.

Professional negligence claims involve the breach of the duty that is owed by a professional to their client. The duty of care in a professional negligence claim is the duty to act as an ordinary individual would in the same or similar circumstances.

As noted above, professionals have a higher duty of care than regular individuals.

Liability for Legal Malpractice

A professional may be found liable for legal malpractice if they had an attorney-client relationship with the individual whom they referred to the negligent attorney. It is important to note that there may be cases in which even a non-client may hold a lawyer liable for a negligent referral.

There are typically three different situations in which an attorney will make a referral. One is a referral by the referring lawyer to the working lawyer, who does all of the legal work, while the referring lawyer receives no fee.

A second type is one in which the lawyer does not do any of the work but receives a referral fee. A third type of referral is one in which both the referring attorney and the referred attorney work on the case.

Typically, the only scenario in which a lawyer may avoid liability is a situation in which the referring lawyer receives no fee and does not perform any work on the case. This is because the referring lawyer does not make any assurances that the lawyer to whom they referred the client would perform satisfactorily.

Even in this situation, however, the referring lawyer is expected to exercise due care when referring a client to another lawyer.

Liability for Medical Malpractice

If an individual is a physician, they may be held liable for medical malpractice if they knew or should have known that the doctor to whom they referred your patient was incompetent. A physician may also face liability if the medical facility or clinic to which they referred their patient was not accredited, was not properly staffed, or was lacking medical equipment.

Similar to lawyers, physicians are encouraged to inquire regarding other physicians’ qualifications before making a referral.

Other Types of Negligent Referrals

If an individual is a realtor, they may be liable for recommending a handyman to their clients if the handyman does a poor job of conducting home repairs for their client. An individual might be an accountant. If so, they may be held liable for recommending a financial manager whose performance is unacceptable to the client.

All professionals have a duty to be cautious and diligent when making recommendations to their clients. Otherwise, they can face professional liability, malpractice issues, and violations of ethics.

How Do I Prove Professional Negligence?

In every jurisdiction, a plaintiff is required to prove specific elements in order to show professional negligence occurred, including:

  • Duty of care: The professional owed a special duty of care to the plaintiff based upon their specialized skills as a professional as well as the nature of the professional’s relationship with the client. This includes giving them legal advice or providing them with surgical care;
  • Breach of duty: The professional, or the defendant, violated the duty of care that they owed to the plaintiff;
  • Causation: The professional defendant was the actual and proximate cause of the injuries the client suffered; and
  • Damages: The client has to prove that the professional breached their duty, which actually led to damages, for example, medical bills for injuries or additional treatments to fix the issue caused.

Typically, professional malpractice cases involve negligence theory. In cases that involve ordinary negligence, the plaintiff must show that the defendant failed to exercise the level of care that a reasonable and prudent individual would under similar circumstances.

In professional malpractice cases that involve certain types of professions, however, the customs of that particular profession are used to set the standard of care. This means that, in professional malpractice cases, plaintiffs are required to show that the defendant failed to exercise the skills and knowledge that reasonable professional members of average skill normally exercised.

The plaintiff must show that the failure to follow the duty of care was the actual and proximate cause of the plaintiff’s injuries. It is likely that this will require expert testimony regarding what constitutes a reasonable level of care in that profession.

Should I Consult an Attorney for Assistance With Negligent Referral Liabilities?

If you are facing negligent referral liability or have any questions regarding negligent referrals, you should consult a liability lawyer. Professional malpractice claims can be complex because every profession involves different standards of care that are specific to that profession.

In addition, the malpractice laws that apply may vary by jurisdiction. If you think you may have a professional malpractice claim because of a professional’s negligence, it is important to have the help of a lawyer.

Your lawyer will guide you through the steps of the legal process, such as filing a lawsuit for negligence, will represent you at trial, and present the best possible case on your behalf.

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