Professional Malpractice

Professional malpractice is a negligent action that results in harm and damages to a client. Professionals have a responsibility to provide specialized services to a reasonable standard of care. When they do not, they can be found guilty of malpractice and liable for damages.

What is a Profession?

Not all paid workers are professionals and not all careers and jobs are professions. A profession is generally considered to include these factors:

  • It must include a group of people who do the same type of work and have similar skills and responsibilities in their paid careers.
  • Professionals generally have specialized training and do work that others cannot do without that training.
  • Members of a profession adhere to accepted standards, ethics, and obligations.
  • Professionals provide services to consumers and the public with value and purpose beyond simply earning a salary.

Some examples of professions subject to professional malpractice include physicians and other healthcare workers, lawyers, accountants and financial planners, veterinarians, engineers and architects, and clergy members.

What is Professional Malpractice?

Professional malpractice is negligence on the part of a professional. Anyone can be accused of negligence for acting in a reasonably unsafe manner resulting in harm or damages.[1] For instance, if someone operates a vehicle while intoxicated, they can be considered negligent in causing an accident and injuries to another person.

A professional is held to a high standard of care. They have training and knowledge that allows them to provide consumers with specialized services. Medical malpractice occurs when a professional does not provide services up to an accepted standard of care and harms someone as a result.[2]

The standard of care for a professional is a consensus among those professionals. For example, dentists agree that they should check patients for signs of oral cancer during routine visits. If a dentist fails to do this exam, a patient could develop cancer that is difficult and expensive to treat. If the dentist had diagnosed it earlier, the results would have been better. That dentist could be found guilty of professional malpractice.

Examples of Professional Malpractice

Many professional malpractice cases involve medical or legal professionals. The potential for harm and damages when someone commits malpractice in one of these professions is significant. But they are not the only professions held to a high standard.

These are just a few examples of some of the many types of potential professional consumers may experience:

  • An architect designs a home with a flaw that later costs the homeowner money to fix.
  • A financial planner gives their client bad advice that causes them to lose money.
  • A lawyer provides bad advice that leads to loss of money or incarceration.
  • A doctor makes a mistake during surgery, resulting in additional harm to the patient and resulting medical expenses.
  • A veterinarian mistakenly euthanizes a pet, causing emotional distress.
  • A pharmacist gives a patient the wrong medication, causing harm and additional medical bills.

Malpractice is often unintentional, but it can also be an intentional wrong. These may be prosecuted as criminal acts, but the victim can also sue for malpractice and damages in a civil lawsuit. For example, a financial planner may steal money from a client. This is both fraud and malpractice.

How is Professional Malpractice Proven?

To prove that a professional committed malpractice, the plaintiff and their lawyer must establish a serious of connected facts:

  1. The defendant had an agreed-upon professional relationship with the plaintiff.
  2. The professional failed to provide services that met a minimal standard of care as determined by general consensus within the profession.
  3. Failure to meet the standard of care resulted in harm to the defendant.
  4. The harm resulted in damages, which could be monetary, non-economic, or both.

Another way to look at proving malpractice is to consider what other professionals would have done in the same situation. If a similar professional in the same situation as the defendant would have acted differently, the defendant likely committed malpractice.

What Do I Do if I Have Been a Victim of Professional Malpractice?

If you believe a professional committed malpractice, take several steps to protect your rights and to recovery damages:

  • Keep records. Keep a record of what happened. This means holding on to all relevant paperwork, expenses and bills, and communications with the professional. For medical issues, photos of your injuries are also useful.
  • List damages. Record all how the incident is costing you money and other types of damages. Have you had to get additional medical care? Did you have to hire another professional? Did the incident cause emotional distress or pain?
  • Talk to a lawyer. A lawyer specializing in professional malpractice can help you prove it. They can negotiate a deal or a settlement with the professional in question or help you file a lawsuit to recover damages if it comes to that.

What Should I Do if Accused of Professional Malpractice?

Professional malpractice lawyers also help professionals. They defend their clients against accusations by clients. If you are a professional accused of malpractice, the first thing you should do is contact your liability insurer. Any damages paid will come from your insurer, so they need to know about the incident.

Keep all information and records about the incident. The insurance company will likely assign you a lawyer. Be open and honest with that lawyer about what happened. If you did commit malpractice, they still need to know the details to defend you. Whatever you do, don’t lie or try to change any records to cover up malpractice. Also, avoid talking to the plaintiff or their legal team. You could incriminate yourself.

Professional malpractice can have serious consequences. Professionals are held to a high standard because they have special skills the general public does not. If you have been harmed by malpractice or are being accused of it, contact a professional malpractice lawyer.

  1. Cornell Law School. Legal Information Institute. (n.d.). Negligence.
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  2. Cornell Law School. Legal Information Institute. (n.d.). Malpractice.
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