Malpractice is a legal cause of action for negligence against a professional. A professional is negligent when they fail to exercise an ordinary degree of professional skill or care in their work and this causes physical injury, loss, or property damage to a patient or client.

Malpractice refers to professional negligence, or a professional’s negligence in the performance of their professional responsibilities.

Who Can Be Liable for Malpractice?

A lawsuit for professional malpractice can be brought against any of the following professionals:

  • Doctors, hospitals and other health care providers, e.g. nurses, for medical malpractice;
  • Attorneys;
  • Dentists and orthodontists;;
  • Veterinarians;
  • Engineers and architects;
  • Psychologists and social workers;
  • Accountants; and
  • Members of the clergy.

How Can I Prove Malpractice?

In general, to prove a case for professional negligence, a person who has been harmed, the “plaintiff” in legal terminology, must produce evidence to show that the defendant owed the plaintiff a duty of care, the defendant breached that duty, the plaintiff suffered harm resulting in economic loss, and the breach of duty of care was a direct cause of the plaintiff’s harm.

With regard to proving malpractice, of course, the kind of proof differs depending on the nature of the profession involved in the case. Typically, malpractice can be proven by producing evidence of the following:

  • A person was the client or patient of a professional who owed the person a duty to provide care that was at least as good as the standard in the profession;
  • The professional did not render competent services. Rather, their service fell below the standards of the profession;
  • As a result of the incompetent professional services, the person suffered economic loss due to physical injury or harm to their property or financial interests.

The use of expert witnesses is required in cases of professional malpractice. The plaintiff needs expert witnesses who can testify as to the standard of care that a professional owed a client or patient and how the particular professional involved failed to render service that met the standard.

In addition, a plaintiff may need expert witnesses to demonstrate how the professionals breach of their duty of care caused injury or loss to the plaintiff and what the economic impact of that loss is. Experts may be helpful in other ways as well, but generally must play a role in a malpractice lawsuit.

There are legal theories other than negligence under which a professional could be liable for damages. For example, a professional could be liable for the breach of a contract that they had with their client. Contracts can be especially important for engineers and architects, for example, and problems with a project can involve breach of a contract.

Or, if the professional has a fiduciary duty to their client, which is a duty to put the client’s interest before their own, they might be liable for breach of fiduciary duty, if they act in a way that is not consistent with their duty. If the professional breaches the ethics rules of their profession in connection with working for a client, this could help prove a case of breach of a fiduciary duty.

What Kind of Damages Can Be Awarded to a Plaintiff for Malpractice?

The amount and type of damages that can be awarded to a plaintiff depend on the type of malpractice and a number of other factors. In most cases, the most important type of damages are compensatory damages. An award of compensatory damages is supposed to compensate the victim for the economic losses they incur because of the malpractice. These types of losses typically associated with malpractice would be injury, property damage or other economic losses.

Clearly the type of damages would depend on the professional and the type of malpractice they have committed. A doctor who is guilty of medical malpractice is likely to have caused physical injury to their patient, who may then have suffered economic losses in connection with the medical treatment of their injury.

Malpractice by an accountant, on the other hand, is unlikely to result in physical injury. Rather it would probably result in some kind of financial loss, for example, a tax liability that the client would otherwise not have owed but for the malpractice of their accountant. The same is true for malpractice by lawyers and members of the clergy.

Examples of failures to perform to reasonable standards of accounting practice that might be considered malpractice are as follows:

  • Improper tax returns;
  • Incorrect advice on accounting matters;
  • Poorly maintained financial records;
  • Embezzlement;
  • Faulty audits and failure to detect fraud;
  • Wrongful certification of financial statements;
  • Violations of state and federal securities laws by accounting auditors;
  • Deviations from generally accepted accounting principles (GAAP), Generally Accepted Auditing Standards (GAAS) and Public Company Accounting Oversight Board (PCAOB) rules;
  • Faulty estate planning advice.

On the other hand, veterinary malpractice might well result in physical injury to a person’s pet, although the costs of medical care for a pet might be quite a bit less than the cost of treating physical injury in a human being. If a veterinarian’s malpractice causes the death of an animal, the standard measure of damages seems to be an award of the market or replacement value of the animal. That would be what it would cost to buy an animal of the same breed, age, condition and training. Remember that vets do not treat only domestic pets, but also livestock and other farm animals.

Malpractice by a psychologist or social worker or other therapist could cause physical harm that it would be very costly to treat. Similarly, dental malpractice could well result in physical injury and even death, so the damages in a dental malpractice case would be similar to those in a case of medical malpractice.

Many different kinds of injuries could result from dental malpractice, but among the most common are the following:

  • Improper tooth extractions;
  • Failure to diagnose conditions such as temporo-mandibular disorder or oral cancer;
  • Failure to obtain informed consent for procedures;
  • Failure to deal properly with complications of treatment, such as an infection;
  • Failure to properly supervise staff, such as hygienists or technologists;
  • Failure to refer a patient to a specialist when necessary;
  • Mistakes in the administration of anesthesia.

Damages in the event of any of these episodes of malpractice would involve compensating the injured plaintiff for the costs of treatment and their pain and suffering.

Damages for architect and engineer malpractice could vary greatly depending on the consequences of the malpractice. This type of malpractice could very well result in physical injury to people, if, for example, a building collapses because it was not competently engineered.

Engineers and architects can be liable for the consequences of their failure to comply with building codes, zoning laws, or other safety regulations. The engineers and architects who provided the design and plans of a building can be responsible if a building is found to be unsafe. Or, if a client asks an engineer or architect to reviews plans to determine the soundness of a structure, they may also be liable if they acted negligently

If a professional’s malpractice causes physical injury then the victim might be able to recover damages to compensate them for their pain and suffering. Damages for pain and suffering address such elements of a victim’s harm as their physical pain or physical impairment, if, for example, they suffer broken bones, mental anguish, a loss of the enjoyment of life or grief if an accident took the life of a loved one.

Some states limit the amount of damages that can be awarded for pain and suffering. For instance, damages are limited to three times the amount of compensatory damages in some states. Other states impose caps on damages for pain and suffering; the amount can vary from $250,000 and $875,000. Caps are common in medical malpractice cases, although not all states have them. New York state, for example, does not have any cap on damages for pain and suffering in medical malpractice cases.

In California, damages for pain and suffering are limited to $250,000, although a bill has been proposed that would increase the cap to $350,000 for injured patients and $500,000 for the families of patients who die. In addition, the amounts would gradually increase and ultimately would increase annually by 2%.

Damages may be calculated through insurance standards also. For example, some insurance companies apply a daily rate and multiply that number by the number of days that the plaintiff has suffered. Caps and limits on damages for pain and suffering are a matter of state law, so a person would want to know what the law on this subject is in the state in which they may file their lawsuit.

Finally, in some cases an award of punitive damages is possible. Punitive damages are money awarded to victims of malpractice if the professional has done something especially deplorable or reprehensible and deserving of punishment.

Whether punitive damages will be awarded depend on the facts of the particular case and whether they show the type of conduct on the part of the defendant that warrants punishment. .

Should I Hire an Attorney If I Am Sued for Malpractice?

If you have been sued for professional malpractice, you definitely want to consult an experienced personal injury lawyer. Or, if you have suffered injury or financial loss because of the actions of a professional, you too should consult with a qualified malpractice lawyer.

Malpractice lawyers often specialize in certain areas of malpractice, such as attorney, dental or mental health malpractice. In the field of medical malpractice, there are lawyers who specialize in certain areas of medical malpractice, for example, plastic surgery malpractice.

If you believe that you suffered a serious loss due to the malpractice of a professional, then a local malpractice lawyer can help analyze your case, negotiate on your behalf and represent you in court, if necessary.