Professional Malpractice Law
Professional malpractice is professional negligence or professional misconduct. To be actionable is to have all the necessary elements to constitute a viable cause of action. For professional malpractice to be actionable, four elements must be met: a professional duty owed to a client, a breach of that duty, causation, and resulting harm or damage. Professional duty is the service to which the client has, with consent from both parties, prescribed from the professional. Professional duty is typically stated explicitly in the contract or verbally agreed upon by the parties. To establish causation of harm from the breach of professional duty, you should be able to answer “no” under the “but for” test; that is, “but for” the alleged breach of professional duty, would the harm or damage still have occurred?Actionable Professional Malpractice
The following circumstances may lead to actionable malpractice:
- Nonfeasance: Nonfeasance is the omission or failure by a professional to perform a duty. Damage or harm arising from professional nonfeasance may constitute actionable malpractice. One example of damage arising from nonfeasance is a busy attorney who forgets to file his client’s claim within the time frame required by law, thereby making the client lose his right of action.
- Malfeasance: Malfeasance is a professional’s failure to perform a duty competently. Damage or harm arising from professional malfeasance may constitute actionable malpractice. One example of damage arising from malfeasance is a doctor who hastily wraps up a surgery, leaving a metal clamp in the patient’s intestines. The doctor’s failure to perform his duty competently later causes the patient’s to get a dangerous infection.
- Acting Outside the Scope of Duty or Area of Competence: Damage or harm arising from a professional acting outside the scope of professional duty may constitute actionable malpractice. One example of this is a doctor who obtained a patient’s consent to operate on her right ear, and, upon finding the left ear diseased during the surgery, decided to operate on the left ear as well. The patient later experiences a loss of hearing in his left ear. Damage or harm arising from a professional acting outside the scope of his or her area of competence may constitute actionable malpractice.
Pursuing a Professional Malpractice Claim
There are two things you should remember before taking legal action against professional malpractice. First, the big burden of proving malpractice is solely in the plaintiff. This is a rather difficult and sometimes even impossible task. Second, poor or unexpected result does not always mean professional malpractice.
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