Malpractice Lawsuits | Medical Malpractice | Legal Malpractice
Malpractice Lawsuits
Malpractice is a special type of tort. A tort is a civil wrong
that permits an injured party to sue for compensation for damages
caused by the harmful conduct of another person. One common type
of tort arises when a driver fails to exercise due care (ordinary
care) while operating an automobile and causes an accident that
results in injury to others. Malpractice and other torts have
these three features in common: they involve a person who has
a duty of care toward others, a failure to exercise due care,
and an injury or other monetary damages caused by that failure.
Because malpractice cases involve members of a profession, many
of the issues that arise are more complex than the issues in
other tort cases. When an automobile driver runs a red light
or speeds, the driver clearly has created a danger for other
people on the highway and will be held liable if the dangerous
driving results in an accident. In many malpractice cases, however,
it is not as clear what the exercise of due care means. Often
there are alternative ways to treat a patient or handle a legal
issue. In a malpractice action, an expert in the field may have
to testify about whether the conduct of the defendant (the professional)
fell below what is expected of a professional in that field.
It may also be difficult to establish whether the conduct of
the defendant caused the injury to the plaintiff (the party seeking
damages). A medical patient's health may have declined or a client
in a lawsuit may have lost a case, regardless of whether the
doctor or lawyer actually made an error. The plaintiff in a malpractice
case must prove that the injury would not have occurred in the
absence of the allegedly improper conduct.
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Medical Malpractice
Medical malpractice is the most common type of malpractice lawsuit.
It typically involves the negligence of a physician while diagnosing
or treating a patient. In the past, courts decided whether a
physician's conduct was negligent by comparing that conduct with
the practices in the locality where the doctor worked or with
the practices of his or her field of medicine. These comparisons
made it difficult for injured patients to win malpractice lawsuits.
Other doctors who could describe the practices in the locality
were often reluctant to testify against their colleagues. More
recently, courts have applied a national standard for professional
conduct when determining whether malpractice occurred.
A small proportion of medical malpractice cases result from
the intentional misconduct of the physician, such as improperly
touching a patient who is unconscious. However, plaintiffs who
are harmed in such a manner typically charge that the physician
committed battery, an intentional tort, rather than alleging
malpractice. A physician may also commit malpractice by doing
something without obtaining the patient's informed consent. For
example, a doctor may commit malpractice by giving a patient
an experimental drug without first informing the patient about
potential risks or side effects, and then obtaining the patient's
consent to use the drug.
Most physicians purchase insurance to protect themselves from
the high cost of malpractice lawsuits. In the mid-1970s and again
in the mid-1980s, insurance companies sharply increased the cost
of medical malpractice insurance. Many reasons for the rising
costs were suggested. Some people blamed the insurance industry,
claiming that insurance companies charged excessive amounts.
Others claimed that lawyers were to blame because they brought
far too many medical malpractice actions, including many that
had no merit. Still others charged that the rise in litigation
was the result of increasingly complex and specialized medical
practices associated with the development of new medical procedures,
equipment, and medications.
In response to the rapid rise in insurance costs (and the resulting
increase in the cost of health care), many states passed legislation
designed to reform tort law. These reforms provided various restrictions
on medical malpractice suits, including limitations on the amount
of damages that could be awarded or the fees that an attorney
could receive. Some states adopted procedural restrictions, such
as shortening the time period in which a plaintiff is permitted
to file a claim or requiring plaintiffs to submit their claims
to screening panels that review the claims and attempt to resolve
disputes prior to litigation.
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Legal Malpractice
The other common type of professional malpractice lawsuit occurs
when a client sues his or her former attorney. A large number
of legal malpractice actions involve claims that an attorney
representing a client in court made an error that harmed the
client. The plaintiff must prove that the prior trial would have
had a different result if the attorney had not acted negligently.
This may require the plaintiff in the malpractice action to retry
the prior case as part of the legal malpractice lawsuit-a complex
and time-consuming process.
Identifying the party to whom an attorney is responsible can
be a controversial issue in legal malpractice actions. Traditionally,
attorneys are obligated to protect their clients and no one else.
In many cases, however, the improper conduct of an attorney may
injure someone other than the client. For example, if an attorney
improperly drafts a client's will, the heirs-rather than the
client-will be harmed. Courts have begun to show more willingness
to hold attorneys liable for injuries to third parties whose
damages could have been anticipated. Rules governing who can
sue for legal malpractice damages vary widely between states.
