What Is Malpractice?

By Aaron Larson

March, 2005

Contents

• Elements of a Claim
• Establishing a Claim
• Proving Damages

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.

Elements of a Claim

The typical elements of a malpractice case involve:

1. Duty: A duty owed by the professional to the plaintiff;
2. Breach: A breach of that duty by the professional;
3. Causation: Injury to the plaintiff caused by that breach of duty; and
4. Damages: Damages to the plaintiff resulting from the injury.

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.

Establishing a Claim

Typical theories of malpractice involve one or more of the following acts or omissions, attributed to the professional:

1. Lack of Due Care: The professional did not live up to the governing standards of professional care and conduct.
2. Lack of Informed Consent: In a health care context, the professional did not adequately inform the patient of risks associated with a course of treatment, such that the plaintiff could understand and knowingly consent to the treatment, or could make an informed choice between multiple treatment options.
3. Abandonment: The professional at some point abandoned the plaintiff, rather than fulfilling duties owed to the patient;
4. Vicarious Liability: (Also "negligent supervision") A third party, perhaps a clinic or hospital, had a duty to properly screen and supervise the professional it permitted to offer services from its premises, and shares liability for the plaintiff's injuries due to its failure to satisfy that duty (e.g., by authorizing an incompetent doctor to offer services to patients of the facility).
5. Injury to a Third Party: The professional engages in conduct which creates some form of duty to a third party, and then engages in conduct which causes harm to that third party. For example a psychotherapist might meet with a patient's spouse as part of a course of treatment, and then engage in professional malpractice or misconduct which results in harm to the spouse (such as causing the breakdown of a marriage).

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.

Proving Damages

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.