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Related to Malpractice: Legal malpractice


The breach by a member of a profession of either a standard of care or a standard of conduct.

Malpractice refers to Negligence or misconduct by a professional person, such as a lawyer, a doctor, a dentist, or an accountant. The failure to meet a standard of care or standard of conduct that is recognized by a profession reaches the level of malpractice when a client or patient is injured or damaged because of error.

After the 1970s the number of malpractice suits filed against professionals greatly increased. Most malpractice suits involved doctors, especially surgeons and other specialists who performed medical procedures with a high degree of risk to their patients. Large damage awards against doctors resulted in higher malpractice insurance costs. Similarly, the increase of malpractice awards against lawyers led to higher insurance premiums and caused some insurance companies to stop writing malpractice policies altogether.

The typical malpractice suit will allege the tort of negligence by the professional. Negligence is conduct that falls below the legally established standard for the protection of others against unreasonable risk of harm. Under negligence law a person must violate a reasonable standard of care. Typically this has meant the customary or usual practice of members of the profession. For example, if a surgeon leaves a sponge or surgical tool inside a patient, the surgeon's carelessness violates a basic standard of care. Likewise, if an attorney fails to file a lawsuit for a client within the time limits required by law, the attorney may be charged with negligence.

Medical Malpractice

Among physicians, malpractice is any bad, unskilled, or negligent treatment that injures the patient. The standard of care formerly was considered to be the customary practice of a particular area or locality. Most states have modified the "locality rule" into an evaluation of the standard of practice in the same or similar locality, combined with an examination of the state of development of medical science at the time of the incident. This modification has taken place as medicine has become increasingly uniform and national in scope. A majority of states define the standard of conduct as that degree of skill and learning ordinarily possessed and used by other members of the profession. A doctor who has met the standard, as established by Expert Testimony at trial, cannot generally be found negligent. Some states have passed statutes that establish the standard of the profession as the test of whether particular treatment was negligent.

Specialists within the medical field are generally held to standards of care that are higher than those for general practitioners. In addition, a specialist or anyone undertaking to perform procedures ordinarily done by a specialist will be held to the level of performance applied to that specialty, although the person may not actually be a certified specialist in that field.

A small number of states apply the "respectable minority rule" in evaluating doctors' conduct. This rule exempts a physician from liability where he chooses to follow a technique used only by a small number of respected practitioners. Courts, however, frequently have difficulty in determining what is a respectable minority of physicians or acceptable support for a particular technique.

Some states use the "error in judgment rule." This principle holds that a medical professional who otherwise subscribes to applicable professional standards should not be found to have committed malpractice merely because she committed an error in judgment in choosing among different therapeutic approaches or in diagnosing a condition.

Legal Malpractice

The four general areas of Legal Malpractice are negligent errors, negligence in the professional relationship, fee disputes, and claims filed by an adversary or nonclient against a lawyer. As in the medical field, lawyers must conform to standards of conduct recognized by the profession.

A lawyer has the duty, in all dealings and relations with a client, to act with honesty, Good Faith, fairness, integrity, and fidelity. A lawyer must possess the legal skill and knowledge that is ordinarily possessed by members of the profession.

Once the lawyer and the client terminate their relationship, a lawyer is not allowed to acquire an interest that is adverse to a client, in the event that this might constitute a breach of the Attorney-Client Privilege. In addition, a lawyer cannot use information that he obtained from a client as a result of their relationship. For example, it would constitute unethical behavior for an attorney to first advise a client to sell a piece of property so it would not be included in the client's Property Settlement upon Divorce and then to purchase the property from the client for half its market value.

Any dealings that a lawyer has with a client will be carefully examined. Such dealings require fairness and honesty, and the lawyer must show that no Undue Influence was exercised and that the client received the same benefits and advantages as if she had been dealing with a stranger. If the client had independent legal advice about any transaction, that is usually sufficient to meet the lawyer's burden to prove fairness.

A lawyer also has the duty to provide a client with a full, detailed, and accurate account of all money and property handled for him or her. The client is entitled to receive anything that the lawyer has acquired in violation of his duties to the client.

If a lawyer fails to promptly pay all funds to his client, the lawyer may be required to pay interest. A lawyer is liable for fraud—except when the client caused the attorney to commit fraud—and is generally liable for any damages resulting to the client by his negligence. In addition, a lawyer is responsible for the acts of his associates, clerks, legal assistants, and partners and may be liable for their acts if they result in losses to the client.

Negligent errors are most commonly associated with legal malpractice. This category is based on the premise that an attorney has committed an error that would have been avoided by a competent attorney who exercises a reasonable standard of care. Lawyers who give improper advice, improperly prepare documents, fail to file documents, or make a faulty analysis in examining the title to real estate may be charged with malpractice by their clients. A legal malpractice action, however, is not likely to succeed if the lawyer committed an error because an issue of law was unsettled or debatable.

Many legal malpractice claims are filed because of negligence in the professional relationship. The improper and unprofessional handling of the attorney-client relationship leads to negligence claims that are not based on the actual services provided. Lawyers who fail to communicate with their clients about the difficulties and realities of the particular claim risk malpractice suits from dissatisfied clients who believe that their lawyer was responsible for losing the case.

Another area of legal malpractice involves fee disputes. When attorneys sue clients for attorneys' fees, many clients assert malpractice as a defense. As a defense, it can reduce or totally eliminate the lawyer's recovery of fees. The frequency of these claims is declining, in part perhaps because attorneys are reluctant to sue to recover their fees.

A final area of legal malpractice litigation concerns claims that do not involve a deficiency in the quality of the lawyer's legal services provided to the client, but an injury caused to a third party because of the lawyer's representation. This category includes tort claims filed against an attorney alleging Malicious Prosecution, Abuse of Process, Defamation, infliction of emotional distress, and other theories based on the manner in which the attorney represented the client. These suits rarely are successful except for malicious prosecution. Third-party claims also arise from various statutes, such as Securities regulations, and motions for sanctions, such as under Federal Rule of Civil Procedure 11.

Clergy Malpractice

A growing number of lawsuits against churches and clergy began to be filed in the 1980s, where plaintiffs sued churches as they might sue a corporation or a government agency. Those lawsuits alleged Clergy Malpractice. In them, the plaintiffs claimed that clergy members should be legally held to a higher standard of conduct than ordinary citizens should, in the same way as other professionals in positions of trust, such as doctors or lawyers. The majority of courts have ruled that standards of clergy conduct would violate the First Amendment's separation of church and state. However, some courts have accepted narrower claims accusing individual clergy members of inflicting emotional distress or breaching their fiduciary duty.

In Nally v. Grace Community Church of the Valley, 763 P.2d 948 (Cal. 1988), the California Supreme Court in 1988 rejected a lawsuit accusing the pastors of a Protestant church in Los Angeles of negligence for failing to prevent the 1979 suicide of a 24-year-old man who was a church member. The lawsuit, brought by his parents, argued that the pastors should have referred him to a professional counselor when they learned he had suicidal tendencies.

In 2001, the Utah Supreme Court unanimously upheld the dismissal of Franco v. The Church of Jesus Christ of Latter-day Saitns, 21 P.3d 19 (Utah 2001). In that case, Lynette Franco sued the Mormon Church for negligence for telling her to forgive and forget a 1986 incident in which she claimed to have been the victim of child rape at the hands of another church member. Lawyers for Franco had initially included an allegation of clergy misconduct in the lawsuit, but later dropped it, focusing instead on Fraud, negligence and infliction of distress. But the court rejected it nevertheless, ruling that setting a standard for clergy conduct would embroil the courts in establishing the training, skill and standards applicable for members of the clergy in this state in a diversity of religions professing widely varying beliefs. The justices, all Mormons, were unanimous in their ruling.

Further readings

Mallen, Ronald E., and Jeffrey M. Smith. 1996. Legal Malpractice. 4th ed. St. Paul, Minn.: West.

Rosenblum, James. 1993. Malpractice Solutions. Knoxville, Tenn: Whittle Direct Books.


Attorney Misconduct; Ethics, Legal; Health Care Law; Medical Malpractice; Physicians and Surgeons; Privileged Communication.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.


n. An act or continuing conduct of a professional which does not meet the standard of professional competence and results in provable damages to his/her client or patient. Such an error or omission may be through negligence, ignorance (when the professional should have known), or intentional wrongdoing. However, malpractice does not include the exercise of professional judgment even when the results are detrimental to the client or patient. Except in cases of extremely obvious or intentional wrongs, in order to prove malpractice there must be testimony of an expert as to the acceptable standard of care applied to the specific act or conduct which is claimed to be malpractice and testimony of the expert that the professional did not meet that standard. The defendant then can produce his/her own expert to counter that testimony. Professions which are subject to lawsuits based on claims of malpractice include lawyers, physicians, dentists, hospitals, accountants, architects, engineers and real estate brokers. In some states in order to file an action for malpractice against a medical care giver, there must be a written demand or notice which gives the physician or hospital a chance to settle the matter before a suit is filed. In actions against attorneys it is mandatory that the plaintiff prove that the error, if any, caused damages. This means that a lawsuit, claim or negotiation the attorney was handling would have resulted in a win or better recovery except for the malpractice. Thus, there is a requirement of proving the original "case within the case" during the trial of the malpractice claim. Contrary to public perception substantial judgments in malpractice actions are rare, with studies showing that only a small percentage of the claims result in recovery for the allegedly aggrieved client or patient. The principal reason is that most cries of malpractice are unfounded and are based on unhappiness with the result of the original services no matter how well handled, a breakdown in communication between attorney or doctor and client or patient, anger with the professional, retaliation for attempts to collect unpaid fees, or greed. (See: errors and omissions)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.
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