Although medical malpractice is the most visible species in this genus, professional malpractice claims are applicable to many licensed professions, including lawyers, surveyors, engineers, architects, and accountants. Because professionals perform highly specialized services that their clients cannot provide for themselves, clients often place special trust and confidence in those professionals to protect their interests and meet minimum standards of care.
Trey has successfully pursued malpractice claims against both architects and lawyers.
Although professionals who fail to meet their obligations to their clients may be liable for any number of reasons, including breach of contract or breach of fiduciary duty, all professional malpractice claims have four basic elements:
- the plaintiff was owed a duty for the professional to act with the reasonable standard of care for that profession
- the professional breached that duty by failing to act as he/she should or committing an act in violation of that duty
- the breach of that duty harmed the plaintiff and caused injury; and
- the injury sustained is compensable.
Compensable injuries may include financial losses, construction defects, or physical injuries suffered by the plaintiff.
For most professional malpractice claims, the case must be filed within three (3) years of the last act giving rise to the claim. This is called the statute of limitations. For injuries that aren’t immediately apparent, or said to be latent, the statute of repose may extend the deadline for filing a claim to four (4) years. In the medical malpractice context, the deadline to file suit over foreign objects left in the body for no legitimate medical purpose may extend to as long as ten (10) years from date of the surgery.
Not every mistake made by a licensed professional constitutes malpractice. Similarly, not every valid malpractice claim causes damages such that it is in the client’s best interest to invest the time, money, and energy into pursuing it. To determine whether a professional’s negligence or misconduct has caused sufficient damages to merit legal action, please consult with a lawyer knowledgeable about and experienced in these matters.
Hospitals, doctors, nurses, dentists, pharmacists, and other medical health care professionals may be held liable for medical malpractice. The most prevalent medical malpractice claims involve misdiagnosis, surgical errors, medication errors, and child delivery/obstetrical negligence.
The most obvious case of legal malpractice is when a lawyer fails to file a lawsuit before the statute of limitations on the case has run. Similar errors would include missing other, court-imposed deadlines or failing to follow a court order that results in dismissal of the case. Cases like these are often difficult because the plaintiff not only has to prove the lawyer was negligent, but also that the underlying case would have otherwise been won.
Lawyers may also be liable for malpractice for failing to provide the service for which they were retained. For example, if a lawyer drafts an invalid will or supplies a contract that is void as contravening public policy, the lawyer may be liable for damages suffered by the client as a result.
An accountant’s negligence may lead to the failure to timely and properly file a client’s tax returns or could involve much more complex issues associated with Generally Accepted Accounting Principles (“GAAP”) which could constitute malpractice. Additionally, accountants’ liability may extend beyond the technical client to third parties he or his client know will rely on his professional opinion.
The most typical case of architectural malpractice involves design defects. These defects may arise from drawings that don’t conform to engineering specifications, provide insufficient detail to properly construct the building, or overlook building code, zoning restrictions, etc. and the defects aren’t caught in time to correct them.
Architects are sometimes also hired to supervise or inspect various stages of a project to ensure their plans are implemented; failing to do so properly may also give rise to a malpractice claim.
Similar to architectural malpractice, engineering malpractice most frequently revolves around design defects.