A malpractice, or "professional negligence" case, involves the allegation that a professional (usually a licensed professional) failed to provide services which met the governing standard of care, resulting in an injury to the plaintiff.
The typical elements of a malpractice case involve:
Damages are usually considered to be an essential element of a malpractice claim. That is to say, even if a plaintiff can prove malpractice, a plaintiff is usually unable to sustain a suit unless the malpractice actually caused the plaintiff to suffer damages.
Typical theories of malpractice involve one or more of the following acts or omissions, attributed to the professional:
There are other theories of malpractice as well and, due to variations in state malpractice law, available theories will vary from state to state.
The plaintiff is ordinarily required to present evidence on the governing standard of care which applies to the defendant's profession, and specifically to the services provided by the professional, in order to establish a case. This is typically achieved through testimony from expert witnesses, although in some cases it may be possible to establish that the professional's violation of the standard of care was so obvious that no expert testimony is required.
A plaintiff seeking to establish a medical malpractice case would have the burden of proving by a preponderance of the evidence the theory (or theories) of malpractice that the plaintiff advances against the defendant.
As was previously noted, malpractice cases require a plaintiff to prove that damages were suffered as a result of the malpractice. For example, if a lawyer fails to file a timely motion due to inexcusable neglect, but the court forgives the error and allows the motion to proceed anyway such that the outcome of the case is unaffected by the lawyer's error, it would not normally be possible to prevail in a malpractice case against the lawyer, because no damages resulted from the error. Similarly, even if a doctor completely misdiagnoses a medical condition, if the course of treatment provided by the doctor is the same treatment which would follow from a proper diagnosis, or if recovery is not affected by the misdiagnosis, there will not ordinarily be a basis for bringing a malpractice suit against the doctor.
Damages may be economic or non-economic in nature. Economic damages are "out of pocket" expenses, such as medical bills from treatment required to remedy the a doctor's error, or lost wages due to time lost from work due to the injury. Non-economic damages are typically described as "pain and suffering", and may include emotional pain and distress. Additionally, depending upon state law, punitive damages may be available.