- Overview of Professional Negligence
- FAQ about Professional Negligence
- Signs of Professional Negligence
- How to Prove a Negligence Claim
Overview of Professional Negligence
To understand professional negligence, it is best to begin with a background of ordinary negligence. So, what is negligence? Negligence is an area of tort law that creates liability for people that fail to take reasonable care in avoiding injury or loss to another person. Generally, ordinary negligence occurs when someone does not act as a reasonable person would in certain circumstances. To prove a case for negligence, one must show that (1) defendant owed a duty to the plaintiff; (2) that duty was breached; (3) the defendant’s actions (or inactions) caused the plaintiff’s injury; and (4) the plaintiff was actually injured in some way.
Professional negligence is ordinary negligence conducted by a professional in her capacity as a professional. The major difference between professional negligence and ordinary negligence is the duty of care owed. Professionals owe a heightened duty of care to their patients/clients. This is because professionals are specially trained people that we are supposed to rely on and trust.
What exactly is a professional? A professional is someone with skills, training, and certification in a certain profession (e.g. lawyers, doctors, accountants, etc.). The basis of a professional negligence claim is always related to the exercise of the professional conduct. So, if a lawyer is driving a car, he is not liable as a professional. The professional negligence cases only apply to when the conduct of that profession is being performed by the professional.
Some types of professional malpractice are:
- Attorney malpractice,
- Pharmaceutical malpractice,
- Accounting malpractice,
- Stock broker malpractice,
- Architecture malpractice,
- Engineering malpractice,
- Medical malpractice (this includes all healthcare providers, such as nurses and dentists)
FAQ about Professional Negligence
What is professional negligence?
Professional negligence is the failure of a professional to uphold the standard of care owed to his patient or client. In other words, the professional breached his duty of care to his patient or client and it caused the patient/client some type of injury (the injury could be physical or financial).
The basis of a professional negligence claim is always related to the exercise of professional conduct. So, if a doctor is playing softball, she is not liable as a professional. Professional negligence cases only apply to when the conduct of that profession is being performed (i.e. the doctor is liable for conduct at work).
How much compensation can I receive for professional negligence?
This depends on the specifics of your case. In a claim for ordinary negligence, a plaintiff may be awarded compensatory damages. Compensatory damages compensate you for your losses, so the amount of money you get should compensate you for any injuries or harm suffered. This can include any past, present and future expenses incurred, including medical care, lost earnings, and loss of future earnings.
If the claim arises to gross negligence, you may be able to receive punitive damages. Gross negligence is like ordinary negligence in that it also projects liability onto those who do not act reasonably. However, gross negligence goes further than ordinary negligence because it only occurs when the person (defendant) acts so unreasonably that it is almost intentional. Gross negligence is a conscious and voluntary disregard of the need to use reasonable care.
Punitive damages are different because it is money paid to the plaintiff by the defendant in order to “punish” the defendant. Punitive damages are not to reward the plaintiff, but to deter the defendant from repeating his or her reckless conduct. However, there are limitations to punitive damages. In Florida, there is a cap on the amount of punitive damages available in a personal injury lawsuit. Punitive damages may not exceed the greater of:
- Three times the amount of compensatory damages awarded or
- The sum of $500,000. (See the full text of the law here).
How do I establish professional negligence?
Proving professional negligence requires a showing of the same four elements as ordinary negligence (duty of care, breach of duty, causation, and damages). The difference between professional negligence and ordinary negligence is that professionals owe a heightened duty of care to their clients. Professionals are held to an objective standard of care applicable to all others in their industry regardless of their subjective training and experience. In other words, there is a level of professionalism required and the standards that apply are those that are commonly held by the general profession.
What are some examples of professional negligence?
The two most common forms of professional negligence are attorney malpractice and medical malpractice:
One lawyer or an entire law firm of lawyers can be liable for one claim of attorney malpractice. Attorney malpractice can be an extremely confusing area of professional negligence. If you think you have a claim of attorney malpractice, you should speak with a lawyer. The following are just a few attorney malpractice examples:
- Lack of knowledge of the law and failure to apply the law properly
- Failure to file legal documents
- Failure to obtain client consent
- Conflicts of interest (e.g. if an attorney represents a client that is suing his former employer, but the attorney has financial interests in the former employer, there is a conflict of interest).
Medical malpractice can be committed by doctors, nurses, and other healthcare providers. The following are just a few medical malpractice examples:
- Failure to diagnose cancer, heart disease, deep vein thrombosis, and other diseases (all of which can be fatal if misdiagnosed)
- Anesthesia mistakes:
- Too much or too little anesthesia
- The anesthesia poses a fatal risk to the patient
- Lack of informed consent:
- The doctor didn’t inform the patient of some or all of the risks of a procedure and the patient suffered injury relating to the uninformed risk.
- Other mistakes:
- Leaving medical equipment inside the patient’s body during surgery
- Amputating the wrong limb or finger
- Giving a patient medication that his chart states he is allergic to
What is professional negligence known as in the medical field?
Professional negligence in the medical field is known as medical malpractice.
Signs of Professional Negligence
Signs of professional negligence will differ depending on the profession. For example, signs of medical negligence will be much different than signs of accounting negligence.
Medical Negligence Signs
Signs of medical malpractice include, but are not limited to:
- The treatment your doctor prescribed is not helping
- Your doctor does not give much concern to your issues
- The diagnosis your doctor gave you does not correspond to your symptoms
- Your condition was diagnosed only from lab results
Attorney Negligence Signs
Signs of attorney malpractice include, but are not limited to:
- Your attorney is consistently not returning phone calls and emails within 24 hours or so
- Missing deadlines
- Your attorney is not flexible with billing and scheduling appointments
- Your attorney is not fully explaining the law as applied to your case (i.e. not being transparent with you)
- Your lawyer agreed to a settlement without your authorization
Accounting Negligence Signs
- Failure to provide accurate tax information
- Failure to advise how to properly construct a corporation
- Failure to properly prepare your tax returns
- Not detecting fraud by an employee
How to Prove a Negligence Claim
In any tort claim, there are elements that must be proven to the court to establish the defendant’s liability (i.e. tort liability). Negligence falls under the umbrella of tort law. Thus, in order to prove that a defendant was negligent, you must prove all four elements of negligence:
- breach of duty
You must prove all four and not just one or two of the elements.
The first element that must be proven is whether the defendant owed a “duty of care” to the plaintiff. The duty of care is a standard in tort law to act as a reasonable person. This duty of care can be owed by a person or a business. For example, landlords who owe a duty of care to those who come on the property, and business owners who owe a duty of care to those who enter the business, including employees and customers.
Breach of Duty:
The second element that must be proven is that the duty of care was breached by the defendant acting (or failing to act) in a certain way. For instance, if a landlord breaches the duty of care by failing to install handrails on a staircase, then the second element has been met.
The third element, causation, is that the plaintiff must prove that the defendant’s actions (or inaction) caused the plaintiff’s injury. In other words, the defendant must have caused the harm to occur.
Causation splits into two types:
- actual cause
- proximate cause
A plaintiff must establish both types of causation in order to prove the element of causation.
- Actual cause is exactly what it sounds like: did the defendant actually cause the harm? Actual cause is sometimes referred to as cause-in-fact.
- On the other hand, proximate cause is an extremely complex concept. Put simply, proximate cause asks whether the defendant’s actions (or inactions) caused a foreseeable consequence. Proximate cause is sometimes referred to as legal cause.
The final element of proof of negligence is damages. For this element, the plaintiff must show that he or she was injured or suffered damage as a result of the defendant’s actions (or inactions). Damages can be proven by personal injury, property damage, and in some cases, punitive damages.
The concepts of negligence can be extremely complex and very difficult to understand. Every case has a unique set of facts that may make it difficult to determine if you have a professional negligence case. Speaking with a lawyer is the best way to make that determination.
Think you have a case? Call (954) 951-9583 today!