What is Malpractice?
n law, malpractice is a type of tort in which the misfeasance, malfeasance or nonfeasance of a professional, under a duty to act, fails to follow generally accepted professional standards, and that breach of duty is the proximate cause of injury to a plaintiff who suffers damages. It is committed by a professional or her/his subordinates or agents on behalf of a client or patient that causes damages to the client or patient.
Medical Malpractice
Medical malpractice is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient. Simply put, medical malpractice is professional negligence (by a healthcare provider) that causes an injury.
In the United States and other countries, a specific medical malpractice law has developed. In English law, the issue of liability is a subset of professional negligence where, under the Bolam Test, a doctor will be liable unless shown to have acted in accordance with a reasonable body of medical opinion.
Medical malpractice claims can help identify areas where primary health care in the United States needs improvement, according to the American Academy of Family Physicians. The Academy refers to a study entitled "Learning from Malpractice Claims about Negligent, Adverse Events in Primary Care in the United States", in suggesting that the medical community can learn from tort claims. In that study, researchers looked at primary care malpractice claims settled between 1985 and 2000 in the United States. The study focused on a subset of 5,921 claims that were clear errors. The researchers found:
- 68 percent of the errors were in outpatient settings and resulted in more than 1,200 deaths.
- Negligence was more likely to have severe outcomes when they occurred in hospitals, but the total number of high severity outcomes and death was larger in the outpatient setting.
- Of the 10 most prevalent medical conditions with error-related claims, no single condition accounted for more than five percent of all negligent claims.
- Diagnostic error accounted for more than one-third of the claims.
Legal Malpractice
Legal malpractice is the term for negligence by an attorney that causes harm to his or her client. In order to rise to an actionable level of negligence, the injured party must show that the attorney's acts were not merely the result of poor strategy, but that they were the result of errors that no reasonable attorney would make. Furthermore, legal malpractice requires a showing of an injury that would not have happened unless the attorney had not been negligent. If the injury might have occurred despite different actions by the attorney, no cause of action will be permitted.
A common basis for a legal malpractice claim arises where an attorney misses a deadline for a filing a paper with the court, and this error is dispositive of the case. There exists a community of lawyers within the larger legal community whose entire practice consists of representing plaintiffs in legal malpractice cases.
