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 caregiver, 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.
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