We live in a complex society that gives us many benefits - but also contains many risks. The law of malpractice has evolved as one type of protection against a particular kind of risk. It's a way of providing you with money damages if you're injured through the mistake of a physician or other health care provider (hospital, hospital worker, nurse, technician, dentist, optometrist, etc). In many states, other professionals, or in some cases those in a skilled trade, are also subject to malpractice claims. This list may include architects, engineers, accountants, and veterinarians, among others.
Standards of Negligence. Malpractice is part of personal injury law (also known as tort law). In general, this area of law is designed to protect you if someone else's act or failure to act harms you or your property. The other person didn't usually mean to harm you, but injured you because of negligence.
In malpractice law, the general rule is that the professional is liable for professional negligence if he or she fails to exercise the level of care and skill exercised by reasonably well-qualified persons in the field, causing harm to patients or clients. The key is often whether the professional departs from established standards of practice.
Do You Have a Case? If you think you've been injured through the negligence of a professional, your first step should be to talk to your lawyer as soon as possible. Malpractice cases, like other personal injury actions, are subject to statutes of limitation, meaning that you must bring them within a certain period of time or lose your right to sue. These time periods are often surprisingly short.
Remember, though, that it's not enough just to be unsatisfied with the results of an operation or the way a legal case or an architectural project came out. You'll have to go beyond disappointment to show that the professional failed to possess and apply the knowledge and use the skill and care that is ordinarily used by reasonably well-qualified persons in that field.
That's why your lawyer will want to have as complete a picture as possible of your dealings with the professional. Share with your lawyer relevant documents and records, and help your lawyer understand all the important facts of your case. For example, if your complaint is against a doctor, your lawyer will want to know what happened from your first contact to your last. How did your doctor treat your injury or illness? What did your doctor tell you about your treatment? Did you follow his or her instructions? What happened to you during the course of the treatment?
Did the Professional Follow Accepted Standards? Your lawyer may then proceed to gather information (e.g., medical records, bills, agreements, other documentation) and investigate whether the doctor or other professional followed standard practice or fell below accepted standards.
Part of the process could involve interviewing others in the field to determine the standards that should have been followed in your particular case and to ascertain whether they in fact were followed. Much depends on the particular situation. For example, a specialist like a heart surgeon is held to a higher standard of care - that of a specialist - than is a nonspecialist.
The Settlement Process. If the initial investigation suggests that your claim is one you can recover on, your lawyer will determine the extent of your injuries (e.g., pain and suffering, medical expenses, lost wages, lost business opportunities, misappropriation of funds, etc.) and provide a damages figure to the insurer of the professional. If the insurer considers it a valid claim, the case is likely to be resolved early on and won't have to be tried in court.
Most cases are settled in this way before going to court. Settling means that you agree to accept money in return for dropping your action against the person who injured you. You'll then sign a release absolving the other side of any further liability. The decision to accept a settlement offer is yours, not your lawyer's, though naturally you'll want to pay careful attention to his or her recommendation.
If a settlement is not reached, the case will go to trial, usually before a jury. At the trial, the jury will consider testimony by experts - usually other professionals in the field - who will testify whether they believe the actions in your case followed standard practice or fell below that standard. In the heart surgeon example, testimony might center on what a competent heart surgeon would have done under similar circumstances.
The Bottom Line. When you rely on a doctor or other professional, you have a right to an acceptable level of skill and competence. If you don't get that skill and competence, and suffer injury to your person or property as a result, remember that you can turn to the law to recover damages.
Consent Forms
What if you signed an agreement with the professional before the operation or other professional activity? Will that limit your ability to recover damages?
It may. Usually these agreements - such as the consent forms you may have to sign before a medical procedure - spell out the risks involved. The medical consent agreements may also explain alternatives to the proposed procedure and the risks and benefits of these, as well as the risks of not treating the condition. By signing such an "informed" consent form, you acknowledge that you're aware of possible bad outcomes and assume these risks. That may limit your ability to recover damages.
But much depends on the facts of the specific case. If you can prove that the doctor misrepresented or failed to adequately inform you of the risks and alternatives, your consent may be invalid (an example would be failing to inform you that a prescribed drug was part of an experimental program). And a consent form does not release a physician from liability if he or she did not perform the surgery following accepted procedures, went beyond the consent you gave, or was otherwise negligent.