The word malpractice means bad practice. In a professional setting (such as medical malpractice or legal malpractice) it means that a person with a professional license has been negligent and such negligence was a cause of a personal injury or damages to you.
Malpractice or bad practice is not to be confused with bad outcome. If, for instance, you hire a lawyer to file a lawsuit for you and you lose the lawsuit that is obviously a bad outcome. If your lawyer handled your lawsuit in a professional, non-negligent manner, then the lawyer did not commit malpractice. On the other hand, if you lost your lawsuit because your lawyer failed to gather evidence, subpoena witnesses, or otherwise failed to properly present your case, you may have a claim against your lawyer for malpractice. The same is true for physicians. As patients, we see physicians to receive treatment for a health problem; the treatment may be taking prescribed medications or undergoing surgery. Our physician may do everything possible to address our health problems yet we may remain uncured or we may even be made worse. In such a case, the physician who does what is required will not be held liable even if there is a bad outcome.
Doing what is required is called meeting the standard of care. The standard of care is not a vague, esoteric legal concept; it applies to every one of us in everything we do. As we approach a school zone, for instance, the standard of care applicable to every one driving a vehicle on the road is to slow down so that we are traveling no more than 15 mph as we enter the school zone. If we are stopped in an intersection, waiting to make a left turn, the standard of care requires us to wait for all oncoming traffic to clear and to make the turn only when it is safe to do so. For all of us, generally, the standard of care can be defined as that which a reasonably prudent person would do under the same or similar circumstances. By substituting the word professional for the word person makes the foregoing definition fit (i.e. the standard of care is that which a reasonably prudent professional would do under the same or similar circumstances).
While we all know what the standard of care is when we’re driving a vehicle or doing most of life’s activities, we do not know what the standard of care is regarding the duties owed by a professional whether a doctor, lawyer, engineer, accountant, or any other professional. We must then look to members of the same profession to establish the standard of care. To know what a reasonably prudent professional would do under the same or similar circumstances, we would have to ask a professional to assume those circumstances and render an opinion as to whether or not the professional in question met the standard of care. To maintain a lawsuit against a professional, an injured person must prove not only what the standard of care is but that the professional fell below or breached the standard of care and the person’s injuries or damages were a result of that breach. This is not a simple task and if you believe you may have been the victim of professional malpractice, I encourage you to discuss your potential case with an experienced malpractice lawyer.
Just as it is true that not every bad outcome results from a bad practice it is true that malpractice does occur and clients or patients are injured by the malpractice. At Clarke Law Offices, I welcome the opportunity to speak with you about your potential malpractice claim.