Skip to main content
Select Source:

Malpractice

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.

cross-references

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

Cite this article
Pick a style below, and copy the text for your bibliography.

  • MLA
  • Chicago
  • APA

"Malpractice." West's Encyclopedia of American Law. . Encyclopedia.com. 12 Nov. 2018 <https://www.encyclopedia.com>.

"Malpractice." West's Encyclopedia of American Law. . Encyclopedia.com. (November 12, 2018). https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/malpractice

"Malpractice." West's Encyclopedia of American Law. . Retrieved November 12, 2018 from Encyclopedia.com: https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/malpractice

Learn more about citation styles

Citation styles

Encyclopedia.com gives you the ability to cite reference entries and articles according to common styles from the Modern Language Association (MLA), The Chicago Manual of Style, and the American Psychological Association (APA).

Within the “Cite this article” tool, pick a style to see how all available information looks when formatted according to that style. Then, copy and paste the text into your bibliography or works cited list.

Because each style has its own formatting nuances that evolve over time and not all information is available for every reference entry or article, Encyclopedia.com cannot guarantee each citation it generates. Therefore, it’s best to use Encyclopedia.com citations as a starting point before checking the style against your school or publication’s requirements and the most-recent information available at these sites:

Modern Language Association

http://www.mla.org/style

The Chicago Manual of Style

http://www.chicagomanualofstyle.org/tools_citationguide.html

American Psychological Association

http://apastyle.apa.org/

Notes:
  • Most online reference entries and articles do not have page numbers. Therefore, that information is unavailable for most Encyclopedia.com content. However, the date of retrieval is often important. Refer to each style’s convention regarding the best way to format page numbers and retrieval dates.
  • In addition to the MLA, Chicago, and APA styles, your school, university, publication, or institution may have its own requirements for citations. Therefore, be sure to refer to those guidelines when editing your bibliography or works cited list.

malpractice

malpractice, failure to provide professional services with the skill usually exhibited by responsible and careful members of the profession, resulting in injury, loss, or damage to the party contracting those services. Though accountants, lawyers, and other professionals can be charged with malpractice, the term is most commonly associated with medical professionals (e.g., doctors, nurses, hospital technicians.) Most medical malpractice suits are for negligence on the part of medical professionals in providing expected level of care. In recent decades, partially as a consequence of medical costs, there has been a considerable expansion of medical malpractice suits, though the number of malpractice claims represents only a small percentage (about 3%) of all cases of actual negligence. The direct costs of malpractice, such as settlements and insurance premiums, have tended, however, to remain relatively constant (about 0.5%) with respect to overall medical spending during the last 20 years. Malpractice has led to significantly higher rates for malpractice insurance and, some studies indicate, a "defensive" approach to medicine in which medical personnel are unwilling to order any potentially risky procedures, and protect themselves against subsequent legal action through excessive patient testing and treatment that does not improve the outcome. The most significant medical costs increases are believed to result from excessive testing and treatment, which have been estimated to be as much as six times as great as direct costs. There have been a number of proposed solutions to the increasing burden of malpractice costs, including compensation boards, no-fault statutes, limits on the amount of damages available in various malpractice suits, and an annual limit on the amount that malpractice insurance premiums can increase. Under the Employment Retirement Income Security Act (1974), managed-care organizations are protected from claims for damages resulting from a denial of benefits.

Cite this article
Pick a style below, and copy the text for your bibliography.

  • MLA
  • Chicago
  • APA

"malpractice." The Columbia Encyclopedia, 6th ed.. . Encyclopedia.com. 12 Nov. 2018 <https://www.encyclopedia.com>.

"malpractice." The Columbia Encyclopedia, 6th ed.. . Encyclopedia.com. (November 12, 2018). https://www.encyclopedia.com/reference/encyclopedias-almanacs-transcripts-and-maps/malpractice

"malpractice." The Columbia Encyclopedia, 6th ed.. . Retrieved November 12, 2018 from Encyclopedia.com: https://www.encyclopedia.com/reference/encyclopedias-almanacs-transcripts-and-maps/malpractice

Learn more about citation styles

Citation styles

Encyclopedia.com gives you the ability to cite reference entries and articles according to common styles from the Modern Language Association (MLA), The Chicago Manual of Style, and the American Psychological Association (APA).

Within the “Cite this article” tool, pick a style to see how all available information looks when formatted according to that style. Then, copy and paste the text into your bibliography or works cited list.

Because each style has its own formatting nuances that evolve over time and not all information is available for every reference entry or article, Encyclopedia.com cannot guarantee each citation it generates. Therefore, it’s best to use Encyclopedia.com citations as a starting point before checking the style against your school or publication’s requirements and the most-recent information available at these sites:

Modern Language Association

http://www.mla.org/style

The Chicago Manual of Style

http://www.chicagomanualofstyle.org/tools_citationguide.html

American Psychological Association

http://apastyle.apa.org/

Notes:
  • Most online reference entries and articles do not have page numbers. Therefore, that information is unavailable for most Encyclopedia.com content. However, the date of retrieval is often important. Refer to each style’s convention regarding the best way to format page numbers and retrieval dates.
  • In addition to the MLA, Chicago, and APA styles, your school, university, publication, or institution may have its own requirements for citations. Therefore, be sure to refer to those guidelines when editing your bibliography or works cited list.

malpractice

mal·prac·tice / malˈpraktəs/ • n. improper, illegal, or negligent professional activity or treatment, esp. by a medical practitioner, lawyer, or public official: victims of medical malpractice| investigations into malpractices and abuses of power.

Cite this article
Pick a style below, and copy the text for your bibliography.

  • MLA
  • Chicago
  • APA

"malpractice." The Oxford Pocket Dictionary of Current English. . Encyclopedia.com. 12 Nov. 2018 <https://www.encyclopedia.com>.

"malpractice." The Oxford Pocket Dictionary of Current English. . Encyclopedia.com. (November 12, 2018). https://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/malpractice-0

"malpractice." The Oxford Pocket Dictionary of Current English. . Retrieved November 12, 2018 from Encyclopedia.com: https://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/malpractice-0

Learn more about citation styles

Citation styles

Encyclopedia.com gives you the ability to cite reference entries and articles according to common styles from the Modern Language Association (MLA), The Chicago Manual of Style, and the American Psychological Association (APA).

Within the “Cite this article” tool, pick a style to see how all available information looks when formatted according to that style. Then, copy and paste the text into your bibliography or works cited list.

Because each style has its own formatting nuances that evolve over time and not all information is available for every reference entry or article, Encyclopedia.com cannot guarantee each citation it generates. Therefore, it’s best to use Encyclopedia.com citations as a starting point before checking the style against your school or publication’s requirements and the most-recent information available at these sites:

Modern Language Association

http://www.mla.org/style

The Chicago Manual of Style

http://www.chicagomanualofstyle.org/tools_citationguide.html

American Psychological Association

http://apastyle.apa.org/

Notes:
  • Most online reference entries and articles do not have page numbers. Therefore, that information is unavailable for most Encyclopedia.com content. However, the date of retrieval is often important. Refer to each style’s convention regarding the best way to format page numbers and retrieval dates.
  • In addition to the MLA, Chicago, and APA styles, your school, university, publication, or institution may have its own requirements for citations. Therefore, be sure to refer to those guidelines when editing your bibliography or works cited list.

malpractice

malpractice (mal-prak-tis) n. professional misconduct: treatment falling short of the standards of skill and care that can reasonably be expected from a qualified medical practitioner.

Cite this article
Pick a style below, and copy the text for your bibliography.

  • MLA
  • Chicago
  • APA

"malpractice." A Dictionary of Nursing. . Encyclopedia.com. 12 Nov. 2018 <https://www.encyclopedia.com>.

"malpractice." A Dictionary of Nursing. . Encyclopedia.com. (November 12, 2018). https://www.encyclopedia.com/caregiving/dictionaries-thesauruses-pictures-and-press-releases/malpractice

"malpractice." A Dictionary of Nursing. . Retrieved November 12, 2018 from Encyclopedia.com: https://www.encyclopedia.com/caregiving/dictionaries-thesauruses-pictures-and-press-releases/malpractice

Learn more about citation styles

Citation styles

Encyclopedia.com gives you the ability to cite reference entries and articles according to common styles from the Modern Language Association (MLA), The Chicago Manual of Style, and the American Psychological Association (APA).

Within the “Cite this article” tool, pick a style to see how all available information looks when formatted according to that style. Then, copy and paste the text into your bibliography or works cited list.

Because each style has its own formatting nuances that evolve over time and not all information is available for every reference entry or article, Encyclopedia.com cannot guarantee each citation it generates. Therefore, it’s best to use Encyclopedia.com citations as a starting point before checking the style against your school or publication’s requirements and the most-recent information available at these sites:

Modern Language Association

http://www.mla.org/style

The Chicago Manual of Style

http://www.chicagomanualofstyle.org/tools_citationguide.html

American Psychological Association

http://apastyle.apa.org/

Notes:
  • Most online reference entries and articles do not have page numbers. Therefore, that information is unavailable for most Encyclopedia.com content. However, the date of retrieval is often important. Refer to each style’s convention regarding the best way to format page numbers and retrieval dates.
  • In addition to the MLA, Chicago, and APA styles, your school, university, publication, or institution may have its own requirements for citations. Therefore, be sure to refer to those guidelines when editing your bibliography or works cited list.

malpractice

malpracticeAttis, gratis, lattice •malpractice, practice, practise •Atlantis, mantis •pastis •Lettice, lettuce, Thetis •apprentice, compos mentis, in loco parentis, prentice •Alcestis, testis •poetess • armistice •appendicitis, arthritis, bronchitis, cellulitis, colitis, conjunctivitis, cystitis, dermatitis, encephalitis, gastroenteritis, gingivitis, hepatitis, laryngitis, lymphangitis, meningitis, nephritis, neuritis, osteoarthritis, pericarditis, peritonitis, pharyngitis, sinusitis, tonsillitis •epiglottis, glottis •solstice •mortise, rigor mortis •countess • viscountess •myosotis, notice, Otis •poultice • justice • giantess • clematis •Curtis • interstice • Tethys •Glenrothes • Travis •Jarvis, parvis •clevis, crevice, Nevis •Elvis, pelvis •Avis, Davies, mavis •Leavis • Divis • novice • Clovis •Jervis, service •marquess, marquis

Cite this article
Pick a style below, and copy the text for your bibliography.

  • MLA
  • Chicago
  • APA

"malpractice." Oxford Dictionary of Rhymes. . Encyclopedia.com. 12 Nov. 2018 <https://www.encyclopedia.com>.

"malpractice." Oxford Dictionary of Rhymes. . Encyclopedia.com. (November 12, 2018). https://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/malpractice

"malpractice." Oxford Dictionary of Rhymes. . Retrieved November 12, 2018 from Encyclopedia.com: https://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/malpractice

Learn more about citation styles

Citation styles

Encyclopedia.com gives you the ability to cite reference entries and articles according to common styles from the Modern Language Association (MLA), The Chicago Manual of Style, and the American Psychological Association (APA).

Within the “Cite this article” tool, pick a style to see how all available information looks when formatted according to that style. Then, copy and paste the text into your bibliography or works cited list.

Because each style has its own formatting nuances that evolve over time and not all information is available for every reference entry or article, Encyclopedia.com cannot guarantee each citation it generates. Therefore, it’s best to use Encyclopedia.com citations as a starting point before checking the style against your school or publication’s requirements and the most-recent information available at these sites:

Modern Language Association

http://www.mla.org/style

The Chicago Manual of Style

http://www.chicagomanualofstyle.org/tools_citationguide.html

American Psychological Association

http://apastyle.apa.org/

Notes:
  • Most online reference entries and articles do not have page numbers. Therefore, that information is unavailable for most Encyclopedia.com content. However, the date of retrieval is often important. Refer to each style’s convention regarding the best way to format page numbers and retrieval dates.
  • In addition to the MLA, Chicago, and APA styles, your school, university, publication, or institution may have its own requirements for citations. Therefore, be sure to refer to those guidelines when editing your bibliography or works cited list.

Malpractice

Malpractice

Definition

Malpractice is defined as improper or negligent practice by a lawyer, physician, or other professional who injures a client or patient. The fields in which a judgment of malpractice can be made are those that require training and skills beyond the level of most people's abilities. Medical malpractice is defined as a wrongful act by a physician, nurse, or other medical professional in the administration of treatment—or at times, the omission of medical treatment, to a patient under his or her care. Although dentists, architects, accountants, and engineers are also liable to malpractice suits, most lawsuits of this type in the United States involve medical malpractice.

Negligence can result from a lack of knowledge or skill, or from failure to exercise reasonable judgment in the application of professional knowledge or skill. Lack or failure is determined by comparing the action in question with what a similar practitioner would reasonably be expected to do in the same circumstances.

In law, malpractice is classified as a tort, which is a wrongful act resulting in injury to another's person, property, or reputation. In a tort, the injured party is entitled to seek compensation for the injury. All torts, including malpractice, have three features:

  • a person who has a duty of care toward others
  • a failure to exercise due care
  • an injury or financial damages caused by the failure

Description

The American Nurses Association estimates that there are 1-3 million health care errors in United States hospitals per year. In the past, only physicians were sued for malpractice, but nurses and other allied health professionals are being named with increasing frequency as defendants in lawsuits. This focus on shared responsibility can be attributed to a number of factors.

The responsibilities of nurses and allied health professionals are continually expanding to include more risk and more patient contact without a physician present. In some clinic settings, advanced practice nurses have prescriptive authority and can perform many of the same functions as a physician. This expansion increases the liklihood of lawsuits against nonphysician health care providers.

Limits on staffing and a shortage of qualified nurses have increased demands on the time and attention of health care professionals. Even conscientious workers may find themselves making mistakes when under increased pressure to do more with fewer resources. This pressure leads to errors resulting from breakdowns in communication as well.

In addition, the advent of the Internet has produced a patient population that is more knowledgeable about health care and more aware of the risks and benefits of treatment. Health care providers are no longer regarded as "always knowing what's best." Easy access to health care information enables patients to judge for themselves if they are receiving reasonable care or not.

The legal process of malpractice suits

When a patient wishes to sue a medical professional for malpractice, he or she must first consult an attorney. Most malpractice attorneys work on a contingent fee basis. This term means that the attorney is paid only if the patient recovers damages from the professional. The attorney usually receives a percentage of the gross award—sometimes as high as 30-40%.

The attorney will obtain a detailed medical history from the patient, including the names of all physicians and hospitals who have treated him or her. The most important step is securing a medical expert. The attorney will consult someone certified in the relevant medical specialty in order to determine whether there is sufficient evidence that the defendant medical professional did indeed injure the patient.

If the medical expert concludes that there is evidence of malpractice, a lawsuit is filed. If the plaintiff and the defendant cannot resolve their differences outside of court, the case will go to trial before a judge and jury.

Proving medical malpractice

Four elements must be proven in court in order for a verdict of malpractice, or negligence, to be issued. These include legal duty; breach of duty; causation; and damages.

Legal duty to the patient is initiated upon establishment of a provider-patient relationship. For example, if treatment is begun, a contract is implied to exist between the health care provider and the patient. If health care professionals assist at the scene of an accident, they are covered under Good Samaritan law if the assistance is given freely and in a situation where other medical personnel and equipment are not immediately available. In most states, there is no legal duty to assist in such a situation, although there may be an ethical or moral duty. Good Samaritan law offers protection against litigation for simple negligence in order to encourage health care professionals to stop at accident scenes, but any action considered gross negligence is not protected.

Breach of duty is determined by comparing the action in question with the established standard of care. These standards are developed by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) and State Nurse Practice Acts, and are communicated by professional associations, professional journals and textbooks, job descriptions, and organization policies and procedures.

Proving causation requires evidence that the health care provider's negligence directly caused injury or harm to the patient. Even if breach of duty can be established, malpractice is not proven unless causation is confirmed.

The last step in proving malpractice is verifying that the patient suffered disability, disfigurement, pain, suffering, or financial loss as a result of negligence. In some states, any of the defendants may be required to pay 100% of the award, even if they were only slightly negligent in comparison to the other defendants. This rule is gradually being abolished, however, and usually liability is distributed based on degree of fault.

Viewpoints

Since there has been a trend to include nurses and allied health professionals in medical malpractice suits, the question of liability insurance must be addressed. Nurses and allied health professionals are usually covered by liability insurance provided by their employer, and many professionals consider this coverage sufficient. Others, however, encourage purchasing a personal policy as well for the following reasons:

  • The employer's policy may not cover the total award.
  • Employer coverage may not apply after job termination.
  • Agency workers are not usually covered by hospital policies.
  • Personal policies may also cover attorney fees, transportation, and paid time off from work.

Some professionals may think that having personal liability insurance makes them more likely to be sued; however, this is not true. If a health care worker is involved in a negligent situation in any way, they can be named in the lawsuit. The plaintiff's lawyer may not investigate the defendants for personal insurance; and even if the lawyer does make an investigation, the jury is not allowed to have that information.

Some nurses and allied health professionals may decide not to have personal liability insurance "because it costs too much." The average yearly cost of a nursing policy with a liability limit of $1,000,000 is approximately $90. That's relatively inexpensive protection from having to pay out of one's own pocket for damages awarded in a lawsuit.

Professional implications

The obvious professional implications of malpractice include the reasons for lawsuits against nurses and allied health professionals; and ways to avoid being named in a suit.

Reasons for lawsuits against nurses and allied health professionals

Nurses and allied health care professionals have a duty to question physician orders that are inappropriate or unclear. If they do not ask such questions, and a patient is harmed as a result of an inappropriate order, the nurse or allied health professional is just as liable for damages as the physician. The same is true for verbal orders. Verbal orders should be accepted only in emergency situations, and the physician should write and sign the order immediately afterwards. Telephone orders can be accepted by a registered nurse or pharmacist, but should be signed by the physician as soon as possible.

If a patient's status changes and the physician is not notified, the nurse is liable for damages that may occur. These changes include change in physical status, critical laboratory values, and critical information that the physician should ask for but doesn't. If a medical resident is managing the patient, the attending physician must still be notified.

Documentation is crucial. Specifics should be documented about the patient's condition, who was notified and what was said, the interventions implemented, and the outcomes of care. A favorite phrase in health care is "If it wasn't documented, it wasn't done," and that's exactly how the court will view the patient's chart in a lawsuit.

Other common reasons for lawsuits against nurses include:

  • failure to secure the patient's safety
  • failure to properly assess the patient
  • failure to perform a procedure according to established standards of care
  • failure to administer medication properly

Ways to avoid being named in a lawsuit

Nurses and allied health care professionals who are conscientious and who exercise good judgment are usually successful at avoiding negligent practice. Not every situation can be completely controlled, however, especially when other physicians or health care professionals are involved. The American Nurses Association is a strong advocate for patient safety and has proposed whistle-blower protection for nurses and allied health care professionals who report unsafe patient care practices. Whistle-blower protection legislation has been addressed at the state and federal levels.

There is another simple way to lessen the chance of being included in a lawsuit: give compassionate care. It's been established that patients who file lawsuits tend to sue people who have made them angry. Often, the real issue for patients is that they feel they have not been heard or treated with respect. One study (Beckman, et al., 1994) reviewed 45 malpractice cases against a large medical center and found that in 71% of the cases, plaintiffs stated that they had a negative relationship with the caregivers. The issues included feelings of abandonment; feeling that discomfort had been ignored; not receiving explanations about the care given or expected outcomes; and feeling that the patient's or family's opinions were discounted.

In another situation, a defense attorney for health care providers found that a plaintiff refused to name a certain nurse in the lawsuit, even though the nurse was clearly negligent. The plaintiff felt that this nurse was the only one who gave compassionate care.

Effective communication, compassionate care, and treating patients with dignity increases both patient and professional satisfaction. The end result is patients who are less likely to initiate lawsuits, and health care workers who are less likely to end up in court.

KEY TERMS

Contingent fee— A method of compensation in which an attorney is paid only if damages are awarded to the client. Contingent fees are usually a percentage of the gross amount of the award.

Defendant— The party sued or accused in a court of law.

Plaintiff— The party initiating a lawsuit in a court of law.

Prescriptive authority— Legal authority granted to advanced practice nurses to prescribe medication.

Tort— A wrongful act that causes injury to another person's body, property, or reputation, for which the injured party is entitled to seek compensation. Malpractice is classified as a tort in the legal system of the United States.

Resources

PERIODICALS

Beckman, H.B., et al. "The Doctor-Patient Relationship and Malpractice: Lessons from Plaintiff's Depositions." Archives of Internal Medicine 154, no. 12 (1994): 1365.

Calloway, S. "Preventing Communication Breakdowns." RN 64, no. 1 (2001): 71-72, 74.

Crane, Mark. "NPs and PAs: What's the malpractice risk?" Medical Economics 77, no. 6 (March 20, 2000).

Helm, A., and N. Kihm. "Is Professional Liability Insurance for You?" Nursing 31, no. 1 (2001): 48.

Martin, G.A. "ARNA Workplace Advocacy Newsletter. Torts-R-Us." Arkansas Nursing News 17, no. 4 (2001): 16-18.

Mock, K. "Keep Lawsuits at Bay with Compassionate Care." RN 64, no. 5 (2001): 83-84, 86.

ORGANIZATIONS

American Bar Association (ABA). 750 North Lake Shore Drive, Chicago, IL 60611. (312) 988-5000 or (800) 964-4253.

American Nurses Association. 600 Maryland Ave. SW, 100 W., Washington, DC 20024. (800) 274-4ANA. 〈http://www.nursingworld.org〉.

OTHER

Allied Health Professionals Policy. HCPro. 2001. 〈http://www.credentialinfo.com/cred/pandp/ahppolicy.cfm〉 (July 28, 2001).

Cite this article
Pick a style below, and copy the text for your bibliography.

  • MLA
  • Chicago
  • APA

"Malpractice." Gale Encyclopedia of Nursing and Allied Health. . Encyclopedia.com. 12 Nov. 2018 <https://www.encyclopedia.com>.

"Malpractice." Gale Encyclopedia of Nursing and Allied Health. . Encyclopedia.com. (November 12, 2018). https://www.encyclopedia.com/medicine/encyclopedias-almanacs-transcripts-and-maps/malpractice-0

"Malpractice." Gale Encyclopedia of Nursing and Allied Health. . Retrieved November 12, 2018 from Encyclopedia.com: https://www.encyclopedia.com/medicine/encyclopedias-almanacs-transcripts-and-maps/malpractice-0

Learn more about citation styles

Citation styles

Encyclopedia.com gives you the ability to cite reference entries and articles according to common styles from the Modern Language Association (MLA), The Chicago Manual of Style, and the American Psychological Association (APA).

Within the “Cite this article” tool, pick a style to see how all available information looks when formatted according to that style. Then, copy and paste the text into your bibliography or works cited list.

Because each style has its own formatting nuances that evolve over time and not all information is available for every reference entry or article, Encyclopedia.com cannot guarantee each citation it generates. Therefore, it’s best to use Encyclopedia.com citations as a starting point before checking the style against your school or publication’s requirements and the most-recent information available at these sites:

Modern Language Association

http://www.mla.org/style

The Chicago Manual of Style

http://www.chicagomanualofstyle.org/tools_citationguide.html

American Psychological Association

http://apastyle.apa.org/

Notes:
  • Most online reference entries and articles do not have page numbers. Therefore, that information is unavailable for most Encyclopedia.com content. However, the date of retrieval is often important. Refer to each style’s convention regarding the best way to format page numbers and retrieval dates.
  • In addition to the MLA, Chicago, and APA styles, your school, university, publication, or institution may have its own requirements for citations. Therefore, be sure to refer to those guidelines when editing your bibliography or works cited list.

Malpractice

Malpractice

Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional.

Wisconsin Supreme Court Strikes Down Caps on Damages

Many states have attempted to limit medical malpractice damages awards, fearing that large awards drive up the cost of malpractice insurance premiums, increase medical costs, and discourage doctors from working in their states. Wisconsin addressed this problem by placing a cap, adjusted for inflation, on non-economic damages (pain and suffering) for medical malpractice awards. However, the Wisconsin Supreme Court, in Ferdon v. Wisconsin Patients Compensation Fund, 701 N.W.2d 440 (2005), ruled that the cap violated the state constitution's equal protection clause. Therefore, a child who had been injured at birth was entitled to the $700,000 jury award for past and future noneconomic damages.

Under Wisconsin law prior to this case, a person who brought a claim for medical malpractice against a health care provider could recover both economic and non-economic damages. Non-economic damages include compensation for pain and suffering, mental distress, loss of enjoyment of normal activity, and loss of society and companionship. When this statute was originally enacted in 1995, the legislature established a $350,000 limit on non-economic damages, though this amount was adjusted annually to take inflation into account. By 2005, the limit was established at $445,775. Economic damages are not capped.

The case centered on Matthew Ferdon, who was injured at birth during his delivery in 1997. The doctor pulled on Ferdon's head and caused an injury that partially paralyzed and deformed the boy's right arm; the arm will never function normally. Ferdon underwent surgeries and occupational therapy and he will need to undergo further surgery and therapy in the future.

Ferdon, through a guardian ad litem, sued the doctor who delivered him and the hospital where he was delivered. Also joined in the suit, as required, was the Wisconsin Patients Compensation Fund. The Fund was responsible for paying medical malpractice awards that exceeded primary insurance coverage. A jury in the case awarded Ferdon $403,000 for future medical expenses and $700,000 in non-economic damages. The trial court reduced this amount of non-economic damages to $410,322, which was the maximum allowed in 2002 when the verdict was reached.

After a state appellate court affirmed the trial court's decision to reduce the damage awards, the case was appealed to the state supreme court. Counsel for the child argued that the state's system was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. According to this argument, the state statute created two classes of individuals: (1) those who sustained damages greater than $350,000 and who were only able to recover a fraction of these damages; and (2) those who sustained damages of $350,000 or less and who were fully compensated for their non-economic damages.

The Wisconsin Supreme Court had previously ruled on the constitutionality of different provisions of the statute authorizing the Patient Compensation Fund. In a 1978 case the court had upheld the constitutionality of a review panel process and in a 2001 case the court deadlocked 3-3 over a court of appeals case that upheld the cap on non-economic damages. In Ferdon the court, in a 5-4 decision, first rejected the defendants' argument that the court was bound by these precedents to uphold the constitutionality of the cap amount. Chief Justice Shirley Abrahamson, in her majority opinion, noted that neither case addressed Ferdon's argument that the statutory cap violated the equal protection clause of the state constitution. Because the prior decisions were not squarely on point the court was free to determine whether the cap on non-economic damages was unconstitutional.

The court first determined the appropriate standard of review to review an equal protection challenge. There are three types of standards: strict scrutiny, intermediate scrutiny, and rational basis. Strict scrutiny places a very high burden on the government to justify the constitutionality of a law while intermediate scrutiny places a lesser burden on the government. The rational basis standard of review is much more generous to the government, requiring only that the government show that the law is rationally related to a legitimate government interest. The court opted to use the rational basis standard but stated that its review was "rational basis with teeth." Under this modified standard the court had to determine whether the law had "more than a speculative tendency as the means of furthering a valid legislative purpose."

The court concluded that the cap divided people who were injured as a result of medical negligence into two classes: severely injured persons and less severely injured persons. Those severely injured persons received only a part of their damages, while less severely injured persons (those with non-economic damages below the statutory cap) were able to receive full compensation. The statutory cap also created a second classification scheme: those injured people who were single, those who are married and who have children, and those who are single who have children.

The rational basis for the cap on non-economic damages was based on a number of objectives: to insure adequate compensation for victims with legitimate injury claims, to reduce malpractice awards and malpractice insurance premiums, to protect the fund's financial integrity, to reduce overall healthcare costs, to encourage healthcare providers to practice in Wisconsin, to reduce the use of defensive medicine, and to retain malpractice insurers in the state. The court rejected the conclusion that these objectives sustained the constitutionality of the statute. It found that the cap was not reasonably related to compensating injured persons because the most severely injured persons were treated less favorably than less severely injured persons. To allow the cap would create an undue hardship on a small group of plaintiffs. In addition, the court ruled that the cap had not significantly reduced malpractice insurance premiums nor had the fund demonstrated that it needed the cap to protect its financial integrity. Since its creation in 1975 the fund had only paid 609 claims out of almost 5000 filed. As to reducing overall healthcare costs the court ruled that malpractice premiums were only a very small part of the costs. Finally, the court pointed to a study by the federal government that the caps on non-economic damages did not cause doctors to move in or out of states. Therefore, the proclaimed purposes of the act were not rationally related to legitimate state interests and the cap on non-economic damages violated equal protection. In short, all persons injured by medical malpractice were entitled to their full damages and Ferdon was entitled to the full $700,000 award.

The dissenting justices contended that the legislative purposes rejected by the majority did, in fact, have merit. A substantial portion of very large medical negligence awards was non-economic damages. Moreover, the cap served as an effective means of discouraging some claims from being filed. As to the effectiveness of the cap on overall healthcare costs, the dissenters cited a 2003 congressional report that indicated that malpractice reform could save the federal government anywhere from $12 to $19 billion a year.

The decision set off a firestorm among state legislators. "This is another example of an activist court overstepping its authority," said John Gard, speaker of the state's assembly. "Fixing this ruling will be a top priority." Several politicians, specifically Republicans, along with those in the health care industry warned that this decision could cause residents to lose access to medical care due to rising medical costs.

The legislature spent much of the fall working to reinstate the damage caps. The legislature approved a bill that raised the damage caps to $550,000 for malpractice victims who are younger than 18, and $450,000 for adults. However, Governor Jim Doyle vetoed this bill because the awards were too close to the previous statute. In January 2006, a jury in Dane County, Wisconsin awarded a plaintiff $8.4 million, of which about half was for pain and suffering. The decision energized the debate about the need for damage caps.

In March, the legislature agreed to a proposal that increased the cap on non-economic damages to $750,000. Doyle signed the bill into law. At the time of the signing, Doyle said that he thought the new legislation represented a "reasonable compromise" between the old statute and the court's decision. However, shortly after the bill was enacted, the Wisconsin Academy of Trial Lawyers said that it would challenge the new law in court.

Cite this article
Pick a style below, and copy the text for your bibliography.

  • MLA
  • Chicago
  • APA

"Malpractice." American Law Yearbook 2006. . Encyclopedia.com. 12 Nov. 2018 <https://www.encyclopedia.com>.

"Malpractice." American Law Yearbook 2006. . Encyclopedia.com. (November 12, 2018). https://www.encyclopedia.com/law/legal-and-political-magazines/malpractice-0

"Malpractice." American Law Yearbook 2006. . Retrieved November 12, 2018 from Encyclopedia.com: https://www.encyclopedia.com/law/legal-and-political-magazines/malpractice-0

Learn more about citation styles

Citation styles

Encyclopedia.com gives you the ability to cite reference entries and articles according to common styles from the Modern Language Association (MLA), The Chicago Manual of Style, and the American Psychological Association (APA).

Within the “Cite this article” tool, pick a style to see how all available information looks when formatted according to that style. Then, copy and paste the text into your bibliography or works cited list.

Because each style has its own formatting nuances that evolve over time and not all information is available for every reference entry or article, Encyclopedia.com cannot guarantee each citation it generates. Therefore, it’s best to use Encyclopedia.com citations as a starting point before checking the style against your school or publication’s requirements and the most-recent information available at these sites:

Modern Language Association

http://www.mla.org/style

The Chicago Manual of Style

http://www.chicagomanualofstyle.org/tools_citationguide.html

American Psychological Association

http://apastyle.apa.org/

Notes:
  • Most online reference entries and articles do not have page numbers. Therefore, that information is unavailable for most Encyclopedia.com content. However, the date of retrieval is often important. Refer to each style’s convention regarding the best way to format page numbers and retrieval dates.
  • In addition to the MLA, Chicago, and APA styles, your school, university, publication, or institution may have its own requirements for citations. Therefore, be sure to refer to those guidelines when editing your bibliography or works cited list.

Malpractice

Malpractice

Sections within this essay:

Background
Establishing the Attorney-Client Relationship
Conduct vs. Performance
What Constitutes Actionable Malpractice
Omission or Failure to Do Something (Nonfeasance)
Failure to Perform or Do Something Competently (Malfeasance)
Acting Outside the Scope of Authority, Duty, or Area of Competence

Filing a Malpractice Lawsuit
Alternatives for Addressing Malpractice
Select State Laws on Limitations Period For Filing Malpractice Lawsuits
Additional Resources

Background

Malpractice is professional negligence or (less frequently) professional misconduct. Attorney malpractice generally implies an unreasonable lack of skill, or failure to render professional services in a manner consistent with that degree of skill, care, and learning expected of a reasonably competent and prudent member of the legal profession. Claims against attorneys (lawyers) for legal malpractice are viable in all fifty states. There is no federal law governing attorney malpractice, and state statutes typically address only the appropriate statute of limitations (limiting the time period) for filing claims or lawsuits against attorneys. However, state case law will define and set the parameters for actionable cases of malpractice within the state.

For legal malpractice to be "actionable" (having all the components necessary to constitute a viable cause of action), there must be a duty owed to someone, a breach of that duty, and resulting harm or damage that is proximately caused by that breach. The simplest way to apply the concept of proximate cause to legal malpractice is to ask whether, "but for" the alleged negligence, the harm or injury would have occurred?

Establishing the Attorney-Client Relationship

First and foremost, an attorney must owe a legal duty to a person before his or her competency in performing that duty can be judged. In American jurisprudence, a lawyer has no affirmative duty to assist someone—in the absence of a special relationship with that person (such as doctor-patient, attorney-client, guardian-ward, etc.). That "special relationship" between an attorney and his/her client is generally established by mutual assent/consent. This is most often confirmed by a written "retainer" agreement in which the client expressly and exclusively retains a lawyer and his/her law firm to represent the client in a specific legal matter.

Under rare and limited circumstances, a court may infer that an attorney-client relationship existed as a matter of law, even without a contract or agreement between the parties, and even without the attorney's assent. Such a legal conclusion may be drawn from the facts presented, such as reliance on the part of the client (who believed in good faith that an attorney-client relationship existed) or by the fact that the attorney provided more than just informal or anecdotal opinion or answer to a question. The paying of a fee or retainer is not dispositive in determining whether an attorney-client relationship existed, and courts generally defer to the "client" and base their conclusions on—or at least give substantial weight to—whether the client believed such a relationship existed, confided in the attorney, and relied upon the professional relationship to his or her detriment.

In any event, once the requisite attorney-client relationship is established, the attorney owes to the client the duty to render legal service and counsel or advice with that degree of skill, care, and diligence as possessed by or expected of a reasonably competent attorney under the same or similar circumstances. The "circumstances" may include the area of law in which the attorney practices (although all attorneys are deemed to have basic legal skill and knowledge in the general practice of law), the customary or accepted practices of other attorneys in the area, and the particular circumstances or facts surrounding the representation. The requisite degree of skill and expertise under the circumstances is established by "expert testimony" from other practicing attorneys who share the same or similar skill, training, certification, and experience as the allegedly negligent attorney.

Conduct vs. Performance

The practice of law requires state licensure. All fifty states have criteria governing admission to practice within their states. Although requirements may vary slightly, almost all states require graduation from an accredited law school, passing the "bar exam" (referring to the professional bar association of that state), and submitting to a review and investigation of one's personal background for assessment of "character and fitness" to practice law. Accordingly, all new lawyers start their profession with an acceptable level of professional competency (as determined by graduation from law school and passage of a comprehensive bar exam which gauges their professional knowledge of the law), as well as an acceptable level of character and fitness to practice law (as determined by the state bar review board).

Each state also has adopted codes of conduct, disciplinary rules, and adjudicative boards to address issues of misconduct once attorneys are admitted to practice. The American Bar Association also promulgates and promotes its Model Rules of Professional Conduct (adopted by two-thirds of the states as of 2002).

Additionally, virtually all states now require periodic "updating" of technical and/or academic skills by the mandatory completion of a certain number of classroom or seminar hours each year. Attorneys may generally choose the topics in which these hours are completed, but there is usually a requirement that a minimum number of hours be completed in the area of "ethics." Attorneys who fail to complete these courses may not renew their license to practice for the upcoming year. Additional fines or penalties may apply.

That said, trained, licensed attorneys nonetheless may engage in questionable conduct, display a seeming lack of skill, or otherwise neglect or fail to properly render those duties owed to their clients, their adversaries, or to the judicial system as a whole, in their day-to-day practice of law. For those indiscretions and failures that have resulted in harm to a client, a lawsuit for legal malpractice may be an appropriate remedy.

What Constitutes Actionable Malpractice

State laws govern the viability of causes of action for legal malpractice. The laws vary in terms of time limits to bring suit, qualifications of "expert" witnesses, cognizable theories of liability, and proper party defendants/proper party plaintiffs. Notwithstanding these differences, there are common themes for all cases, and general agreement from state to state on particular instances of nonfeasance or malfeasance of professional duties that may constitute legal malpractice.

Not all instances of malpractice involve an attorney's handling of a case for trial (although persons generally think of attorneys within the context of matters involving litigation ). For example, an attorney may fail to file a request for variance in a county zoning matter involving a parcel of real property or may fail to catch an error on closing documents submitted to him/her. An attorney may erroneously advise a client about an area of law, e.g. foreign adoption. Or an attorney may otherwise act on behalf of a client, against that client's express authority or per-mission. Any of these may constitute examples of actionable legal malpractice.

Omission or Failure to Do Something (Nonfeasance)

At the top of the list of dreaded mistakes for any attorney is the failure to file a claim, notice, or lawsuit within the time prescribed by law. Inevitably, the client loses his or her right of action, and the entire cause is lost. Such a failure is "black and white" in the eyes of jurors, and disastrous for the client. Similarly, the failure to answer a claim, notice, or lawsuit on behalf of a client may result in forfeiture, loss of defense, or default judgment entered against a client, often fatal failures. A failure to appear in time to set aside a default judgment is equally serious. Unfortunately, courts do not consider that the error was made by the attorney and not the client. The client must sue the attorney for malpractice to recoup his or her loss.

Probably second to the above, in terms of occurrence and viability, is the failure to provide required notice. Such failures may include the failure to notify potential heirs at law of a probate matter, failure to provide notice to creditors of a pending action, failure to post public notice regarding a real property action, failure to appear in court, or failure to notify a client of an offer to settle the case, received from the opposing party. These matters generally constitute actionable malpractice if the client has suffered harm or damage as a result of the alleged failures.

Third in line is that group of failures which are serious but not always fatal to a client's interest(s). These include such things as failure to file a certain motion in court, failure to name the right parties in a lawsuit (very serious if the time period for filing expires), failure to take or obtain certain discovery (e.g., documents or evidence ), failure to object to the admission of certain evidence at trial (more serious), failure to raise certain issues or questions at depositions, public hearings, trials, arbitrations and mediations, etc.

Sometimes overlooked but nonetheless considered malpractice is the failure to communicate with a client and/or keep the client apprized of the status of the legal matter. However, such instances of malpractice are seldom "actionable" (because of impalpable damages) and are better addressed through a grievance process or letter of complaint.

The above instances of failures are not comprehensive and are intended only as representative by way of example. Not all occurrences of the above "failures" will result in actionable malpractice in all jurisdictions and under all factual scenarios.

Failure to Perform or Do Something Competently (Malfeasance)

An attorney may be equally liable for malpractice if he or she performs the actions required by law, but does so in an incompetent or substandard manner. For example, an attorney may timely file a cause of action in court, but the complaint may fail to contain important details or averments (allegations), resulting in dismissal of the suit. An attorney may take the deposition of a witness but ask irrelevant questions or fail to ask the necessary questions needed to elicit needed testimony. An attorney may prepare a last will and testament for a client but accidentally leave out or miswrite a very important bequest. An attorney may appear in time for a criminal sentencing hearing but be wholly unprepared or unfamiliar with the case or the issues.

All of the above examples represent situations requiring levels of skill generally attributable to or expected of any competent attorney practicing law in any state. They do not require specialized knowledge in any particular area of law and do not require advanced levels of legal experience or expertise. They are considered examples of fundamental practice of law. Breaches or failures of this type are generally preventable, avoidable, and therefore, actionable in most cases.

Within the context of litigation, it should be mentioned that in most states, a client's retention of an attorney to represent an action at trial implies that the client has delegated to the attorney all decision-making regarding the manner in which the trial should be conducted or the case should be presented. Even if the attorney loses the case, and a judgment is entered against his or her client, it does not mean that any malpractice was committed; after all, in every trial, at least one competent attorney loses and one wins. Under a broad area of attorney discretion, commonly referred to as "trial tactics," errors in judgment at trial (e.g., whether or not to present a certain witness or introduce certain evidence) which are not patently substandard for the profession, do not generally give rise to a cause of action for malpractice.

Acting Outside the Scope of Authority, Duty, or Area of Competence

In addition, there are clear instances when attorneys should decline representation because they are not skilled enough—or do not possess the requisite subject matter knowledge—to provide competent representation for a client. By way of example, such legal matters as wrongful death by medical malpractice, complex corporate mergers or buy-outs, or complex financial transactions, should not be handled by new attorneys without supervision. Often, mistakes in taking on a new client are made when new attorneys want to "impress" their colleagues or superiors, or when sole practitioners need money or more cases.

An attorney retained to represent a client in one matter may unilaterally and without authority decide to represent a client, or act on the client's behalf, in another unrelated matter. The client may subsequently ratify the representation, or, if harmed, may sue for malpractice. Likewise, an attorney retained for a specific matter may unilaterally and without authority decide to accept an offer of settlement for a certain amount of money, without the client's authority. This is a good example of malpractice but may not be "actionable" malpractice, if the client is unable to prove (by a preponderance) that he or she would have gotten more money had the matter gone to trial.

Filing a Malpractice Lawsuit

There are two important factors to remember about a cause of action for malpractice. First, a client should realize that a poor, unfair, or unexpected result does not mean that any malpractice occurred. Second, in the event that malpractice has occurred, the client must prove that he or she has suffered harm or loss due to the alleged wrongs on the part of an attorney. This is not as easy to prove as one might think. For example, if the alleged malpractice involved a matter in litigation, the client must prove that he or she would have won the case, i.e., a jury would have ruled in his or her favor, "but for" the alleged malpractice. This means that, in proving a case for malpractice, the client will have to actually "try" the "underlying case" before a real jury, and win it, in order to prove the point. Consequently, many lawsuits for malpractice are settled out of court to avoid the time, expense, and uncertainty of such a burden.

Alternatives for Addressing Malpractice

All states have attorney discipline boards or committees that accept informal or formal complaints from aggrieved clients. In matters that involve misconduct more than incompetency, this may be the forum of choice. Generally, disciplinary boards have authority to impose fines, order restitution to a client, and suspend or revoke a lawyer's license to practice law in that state. Clients also may wish to consider alternative dispute resolution, such as arbitration or mediation, to settle their claims of alleged malpractice.

Finally, it is worth noting that attorneys are generally required to advise their clients of known instances of actionable malpractice that have harmed the client or caused loss or damage. By far, the majority of attorneys are honest, competent, and committed to providing good service, and will so advise clients in the event of a known failure. However, what may appear to a layman as "malpractice" at first blush, may in reality constitute no more than a decision or tactic employed by the attorney that conflicts with a client's expectation of likely action or outcome. Persons who believe that their attorneys may have committed malpractice are encouraged to consult with legal counsel who specialize in the area of professional malpractice.

Select State Laws on Limitations Period For Filing Malpractice Lawsuits

CALIFORNIA: Actions for legal malpractice must be brought within one year of discovery of a claim, with a maximum four years' limitation from the date of the alleged wrong. Proc: Section 340.6.

CONNECTICUT: Actions for legal malpractice must be brought within two years of discovery, with a maximum three years' limitation from the date of the alleged wrong. Section 52-584.

ILLINOIS: Actions for legal malpractice must be brought within a maximum of six years from discovery of the alleged wrong 735 ILCS 5/13/214/3.

KANSAS: Actions for legal malpractice must be brought within two years of discovery, with a maximum four years' limitation from the date of the alleged wrong. Section 60-513(a)(7), 60-513(c).

KENTUCKY: Actions for professional service malpractice must be brought within one year from discovery. Section 413-245.

MAINE: Actions for legal malpractice must be brought within two years, Section 753-A.

MISSISSIPPI: Actions for professional malpractice must be brought within two years. Section 15-1-36.

MONTANA: Actions for legal malpractice must be brought within three years from discovery, with a maximum ten years' limitation from the date of the alleged wrong. Section 27-2-206.

NEVADA: Actions for legal malpractice must be brought within four years. Section 11.207.

RHODE ISLAND: Actions for legal malpractice must be brought within three years. Section 9-1-14.1 and 9-1-14.3.

SOUTH DAKOTA: Actions for legal malpractice must be brought within three years. Section 15-2-14.2.

TENNESSEE: Actions for legal malpractice must be brought within one year Section 28-3-104.

Additional Resources

"American Bar Association Model Rules of Professional Conduct" 2001. Available at http://www.abanet.org/crp/mrpc/mrpc_toc.html.

"Attorney Malpractice" 2001. Halt Legal Information Clearinghouse. Available at http://www.halt.org/ELS/ELScontrol.cfm?getELS=elsB1.

"The Hierarchy of Attorney Malpractice" 2001. Available at http://attorneymal-practice.com/heirarchy.htm.

National Survey of State Laws 3rd Edition. Richard A. Leiter, Ed. Gale Group, 1999.

Cite this article
Pick a style below, and copy the text for your bibliography.

  • MLA
  • Chicago
  • APA

"Malpractice." Gale Encyclopedia of Everyday Law. . Encyclopedia.com. 12 Nov. 2018 <https://www.encyclopedia.com>.

"Malpractice." Gale Encyclopedia of Everyday Law. . Encyclopedia.com. (November 12, 2018). https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/malpractice-0

"Malpractice." Gale Encyclopedia of Everyday Law. . Retrieved November 12, 2018 from Encyclopedia.com: https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/malpractice-0

Learn more about citation styles

Citation styles

Encyclopedia.com gives you the ability to cite reference entries and articles according to common styles from the Modern Language Association (MLA), The Chicago Manual of Style, and the American Psychological Association (APA).

Within the “Cite this article” tool, pick a style to see how all available information looks when formatted according to that style. Then, copy and paste the text into your bibliography or works cited list.

Because each style has its own formatting nuances that evolve over time and not all information is available for every reference entry or article, Encyclopedia.com cannot guarantee each citation it generates. Therefore, it’s best to use Encyclopedia.com citations as a starting point before checking the style against your school or publication’s requirements and the most-recent information available at these sites:

Modern Language Association

http://www.mla.org/style

The Chicago Manual of Style

http://www.chicagomanualofstyle.org/tools_citationguide.html

American Psychological Association

http://apastyle.apa.org/

Notes:
  • Most online reference entries and articles do not have page numbers. Therefore, that information is unavailable for most Encyclopedia.com content. However, the date of retrieval is often important. Refer to each style’s convention regarding the best way to format page numbers and retrieval dates.
  • In addition to the MLA, Chicago, and APA styles, your school, university, publication, or institution may have its own requirements for citations. Therefore, be sure to refer to those guidelines when editing your bibliography or works cited list.

Malpractice

MALPRACTICE

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

Revisiting the Feres Doctrine

In 1950, the U.S. SUPREME COURT decided, in Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152, that active-service military personnel could not sue military health care providers for medical errors. Over the years, the holding in this case became known as the Feres Doctrine .

Much of the reasoning behind the unanimous opinion in Feres rested upon the fact that the military already provides service members with medical care and coverage for service-connected injuries and illnesses, including future medical benefits for service-connected disabilities, in some cases amounting to lifetime medical care. The legal remedy for medical malpractice is generally a monetary award aimed at making the plaintiff/complainant “whole” again, (e.g., covering all medical costs as well as compensation for pain and suffering, scarring, etc., caused by the alleged error). Since the military already provides most of these benefits for service-connected injuries or illnesses (including Veterans Administration benefits), the Court reasoned, there was no need or entitlement to a duplicative remedy through litigation. The issue before the Court in Feres involved an interpretation of the FEDERAL TORT CLAIMS ACT, which permits citizens limited rights to sue the government for alleged wrongs committed by federal employees or agencies. Another major consideration in the Feres decision was the need to prevent military discipline problems that could stem from subordinates filing lawsuits against their superiors.

But a spate of newer incidents brought renewed fervor to overturn Feres. In September 2007, a former Navy pilot who became a medical malpractice attorney filed a $5 million lawsuit in U.S. District Court for the Middle District of Florida for the death of Navy 3rd Class Nathan Hafterson at Naval Hospital in Jacksonville. An affidavit by a state-certified expert witness in the case opined that Hafterson died as a result of the failure of Navy doctors to timely treat his medicine-induced hyperthermia (high fever) with the proper antidote, Dantroline. According to a 2006 report by Military Times citing federal court papers, medical malpractice at this facility between 2000 and 2005 resulted in 12 deaths and at least four patients left crippled or disabled.

Then in January 2008 came the death of Marine Sergeant Carmelo Rodriguez, whose military doctors misdiagnosed a deadly melanoma for a wart. Rodriguez, 29, was an Iraq war veteran and budding part-time actor originally from New York. Military medical records revealed that a doctor completing his enlistment “physical” (medical checkup) in 1997 noted Rodriguez' skin as “abnormal,” in particular, noting a “melanoma on the right buttocks.” There was no accompanying recommendation for further monitoring, follow-up, or treatment. Other military records referenced the same abnormal growth as a “wart,” still without treatment or attention. It is medically well recognized that melanoma, a form of deadly skin cancer, can quickly metastasize and become fatal if left untreated. When a CBS News TV crew came to the residence of Rodriguez to interview him, the 80-lb. weakened man, diagnosed with stage-4 metastatic melanoma, died eight minutes later, holding the hand of his seven-year-old son.

His death prompted Rep. Maurice D. Hinchley (D-NY), in early 2008, to promise renewed effort in Congress to overturn Feres. Conversely, Rep. Duncan Hunter (R-CA), acknowledging renewed efforts to repeal Feres, publicly supported the doctrine as “a reasonable approach to ensuring that litigation does not interfere with the objectives and readiness of our nation's military,” reported the Los Angeles Times. Several previous bills had easily passed in the House but later failed in the Senate.

Still, motivated by the notion that Congress will not act unless the public forces it to, Rodriguez' family was joined by several others who lost loved ones to alleged military medical malpractice. Barbara Cragnotti, whose son lost part of a lung and sustained neurological injuries from undiagnosed pneumonia while in the military service, became head of the organization VERPA (Veterans Equal Rights Protection Advocacy). The non-profit group was determined “to expose and remedy” what it refers to as “the un-American Feres Doctrine.” In 2007, it renewed its VERPA LLC Renewed National Petition and ‘Feres Doctrine’ Mandate (FDM) & Right to Know (RTK) Project, circulated for signature among military families and headed for Congressional review.

Even the Supreme Court, in 1987, had come within one vote of overturning its 1950 decision. Justice ANTONIN SCALIA wrote the dissenting opinion for the four-member minority in Smith v. United States, involving a military sergeant unknowingly used in the LSD human experiments at Edgewood Arsenal, Maryland. Wrote Scalia, “Feres was wrongly decided and heartily deserves the ‘widespread, almost universal criticism’ it has received.” (Despite the adverse Court decision, Congress passed a special law to compensate Sergeant Stanley.)

The original Feres decision encompassed three separate cases at the time. Rudolph Feres was a soldier who died in a barracks fire as the result of a faulty heating system. The other two cases involved military medical malpractice, including the discovery of a nearly three-foot-long towel left in the abdomen of one soldier following an operation by military surgeons.

Cite this article
Pick a style below, and copy the text for your bibliography.

  • MLA
  • Chicago
  • APA

"Malpractice." American Law Yearbook 2008. . Encyclopedia.com. 12 Nov. 2018 <https://www.encyclopedia.com>.

"Malpractice." American Law Yearbook 2008. . Encyclopedia.com. (November 12, 2018). https://www.encyclopedia.com/law/legal-and-political-magazines/malpractice

"Malpractice." American Law Yearbook 2008. . Retrieved November 12, 2018 from Encyclopedia.com: https://www.encyclopedia.com/law/legal-and-political-magazines/malpractice

Learn more about citation styles

Citation styles

Encyclopedia.com gives you the ability to cite reference entries and articles according to common styles from the Modern Language Association (MLA), The Chicago Manual of Style, and the American Psychological Association (APA).

Within the “Cite this article” tool, pick a style to see how all available information looks when formatted according to that style. Then, copy and paste the text into your bibliography or works cited list.

Because each style has its own formatting nuances that evolve over time and not all information is available for every reference entry or article, Encyclopedia.com cannot guarantee each citation it generates. Therefore, it’s best to use Encyclopedia.com citations as a starting point before checking the style against your school or publication’s requirements and the most-recent information available at these sites:

Modern Language Association

http://www.mla.org/style

The Chicago Manual of Style

http://www.chicagomanualofstyle.org/tools_citationguide.html

American Psychological Association

http://apastyle.apa.org/

Notes:
  • Most online reference entries and articles do not have page numbers. Therefore, that information is unavailable for most Encyclopedia.com content. However, the date of retrieval is often important. Refer to each style’s convention regarding the best way to format page numbers and retrieval dates.
  • In addition to the MLA, Chicago, and APA styles, your school, university, publication, or institution may have its own requirements for citations. Therefore, be sure to refer to those guidelines when editing your bibliography or works cited list.

Malpractice

Malpractice

Definition

Malpractice is defined as improper or negligent practice by a lawyer, physician, or other professional who injures a client or patient. The fields in which a judgment of malpractice can be made are those that require training and skills beyond the level of most people's abilities. Medical malpractice is defined as a wrongful act by a physician, nurse, or other medical professional in the administration of treatment— or at times, the omission of medical treatment, to a patient under his or her care. Although dentists, architects, accountants, and engineers are also liable to malpractice suits, most lawsuits of this type in the United States involve medical malpractice.

Negligence can result from a lack of knowledge or skill, or from failure to exercise reasonable judgment in the application of professional knowledge or skill. Lack or failure is determined by comparing the action in question with what a similar practitioner would reasonably be expected to do in the same circumstances.

In law, malpractice is classified as a tort, which is a wrongful act resulting in injury to another's person, property, or reputation. In a tort, the injured party is entitled to seek compensation for the injury. All torts, including malpractice, have three features:

  • a person who has a duty of care toward others
  • a failure to exercise due care
  • an injury or financial damages caused by the failure

Description

The American Nurses Association estimates that there are 1–3 million health care errors in United States hospitals per year. In the past, only physicians were sued for malpractice, but as of 2001, nurses and other allied health professionals are being named with increasing frequency as defendants in lawsuits. This focus on shared responsibility can be attributed to a number of factors.

The responsibilities of nurses and allied health professionals are continually expanding to include more risk and more patient contact without a physician present. In some clinic settings, advanced practice nurses have prescriptive authority and can perform many of the same functions as a physician. This expansion increases the liklihood of lawsuits against nonphysician health care providers.

In 2001, limits on staffing and a shortage of qualified nurses have increased demands on the time and attention of health care professionals. Even conscientious workers may find themselves making mistakes when under increased pressure to do more with fewer resources. This pressure leads to errors resulting from breakdowns in communication as well.

In addition, the advent of the Internet has produced a patient population that is more knowledgeable about health care and more aware of the risks and benefits of treatment. Health care providers are no longer regarded as "always knowing what's best." Easy access to health care information enables patients to judge for themselves if they are receiving reasonable care or not.

The legal process of malpractice suits

When a patient wishes to sue a medical professional for malpractice, he or she must first consult an attorney. Most malpractice attorneys work on a contingent fee


KEY TERMS


Contingent fee —A method of compensation in which an attorney is paid only if damages are awarded to the client. Contingent fees are usually a percentage of the gross amount of the award.

Defendant —The party sued or accused in a court of law.

Plaintiff —The party initiating a lawsuit in a court of law.

Prescriptive authority —Legal authority granted to advanced practice nurses to prescribe medication.

Tort —A wrongful act that causes injury to another person's body, property, or reputation, for which the injured party is entitled to seek compensation. Malpractice is classified as a tort in the legal system of the United States.


basis. This term means that the attorney is paid only if the patient recovers damages from the professional. The attorney usually receives a percentage of the gross award—sometimes as high as 30–40%.

The attorney will obtain a detailed medical history from the patient, including the names of all physicians and hospitals who have treated him or her. The most important step is securing a medical expert. The attorney will consult someone certified in the relevant medical specialty in order to determine whether there is sufficient evidence that the defendant medical professional did indeed injure the patient.

If the medical expert concludes that there is evidence of malpractice, a lawsuit is filed. If the plaintiff and the defendant cannot resolve their differences outside of court, the case will go to trial before a judge and jury.

Proving medical malpractice

Four elements must be proven in court in order for a verdict of malpractice, or negligence, to be issued. These include legal duty; breach of duty; causation; and damages.

Legal duty to the patient is initiated upon establishment of a provider-patient relationship. For example, if treatment is begun, a contract is implied to exist between the health care provider and the patient. If health care professionals assist at the scene of an accident, they are covered under Good Samaritan law if the assistance is given freely and in a situation where other medical personnel and equipment are not immediately available. In most states, there is no legal duty to assist in such a situation, although there may be an ethical or moral duty. Good Samaritan law offers protection against litigation for simple negligence in order to encourage health care professionals to stop at accident scenes, but any action considered gross negligence is not protected.

Breach of duty is determined by comparing the action in question with the established standard of care. These standards are developed by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) and State Nurse Practice Acts, and are communicated by professional associations, professional journals and textbooks, job descriptions, and organization policies and procedures.

Proving causation requires evidence that the health care provider's negligence directly caused injury or harm to the patient. Even if breach of duty can be established, malpractice is not proven unless causation is confirmed.

The last step in proving malpractice is verifying that the patient suffered disability, disfigurement, pain , suffering, or financial loss as a result of negligence. In some states, any of the defendants may be required to pay 100% of the award, even if they were only slightly negligent in comparison to the other defendants. This rule is gradually being abolished, however, and usually liability is distributed based on degree of fault.

Viewpoints

Since there has been a trend to include nurses and allied health professionals in medical malpractice suits, the question of liability insurance must be addressed. Nurses and allied health professionals are usually covered by liability insurance provided by their employer, and many professionals consider this coverage sufficient. Others, however, encourage purchasing a personal policy as well for the following reasons:

  • The employer's policy may not cover the total award.
  • Employer coverage may not apply after job termination.
  • Agency workers are not usually covered by hospital policies.
  • Personal policies may also cover attorney fees, transportation, and paid time off from work.

Some professionals may think that having personal liability insurance makes them more likely to be sued; however, this is not true. If a health care worker is involved in a negligent situation in any way, they can be named in the lawsuit. The plaintiff's lawyer may not investigate the defendants for personal insurance; and even if the lawyer does make an investigation, the jury is not allowed to have that information.

Some nurses and allied health professionals may decide not to have personal liability insurance "because it costs too much." The average yearly cost of a nursing policy with a liability limit of $1,000,000 is approximately $90. That's relatively inexpensive protection from having to pay out of one's own pocket for damages awarded in a lawsuit.

Professional implications

The obvious professional implications of malpractice include the reasons for lawsuits against nurses and allied health professionals; and ways to avoid being named in a suit.

Reasons for lawsuits against nurses and allied health professionals

Nurses and allied health care professionals have a duty to question physician orders that are inappropriate or unclear. If they do not ask such questions, and a patient is harmed as a result of an inappropriate order, the nurse or allied health professional is just as liable for damages as the physician. The same is true for verbal orders. Verbal orders should be accepted only in emergency situations, and the physician should write and sign the order immediately afterwards. Telephone orders can be accepted by a registered nurse or pharmacist, but should be signed by the physician as soon as possible.

If a patient's status changes and the physician is not notified, the nurse is liable for damages that may occur. These changes include change in physical status, critical laboratory values, and critical information that the physician should ask for but doesn't. If a medical resident is managing the patient, the attending physician must still be notified.

Documentation is crucial. Specifics should be documented about the patient's condition, who was notified and what was said, the interventions implemented, and the outcomes of care. A favorite phrase in health care is "If it wasn't documented, it wasn't done," and that's exactly how the court will view the patient's chart in a lawsuit.

Other common reasons for lawsuits against nurses include:

  • failure to secure the patient's safety
  • failure to properly assess the patient
  • failure to perform a procedure according to established standards of care
  • failure to administer medication properly

Ways to avoid being named in a lawsuit

Nurses and allied health care professionals who are conscientious and who exercise good judgment are usually successful at avoiding negligent practice. Not every situation can be completely controlled, however, especially when other physicians or health care professionals are involved. The American Nurses Association is a strong advocate for patient safety and has proposed whistle-blower protection for nurses and allied health care professionals who report unsafe patient care practices. Whistle-blower protection legislation has been addressed at the state and federal levels.

There is another simple way to lessen the chance of being included in a lawsuit: give compassionate care. It's been established that patients who file lawsuits tend to sue people who have made them angry. Often, the real issue for patients is that they feel they have not been heard or treated with respect. One study (Beckman, et al.,1994) reviewed 45 malpractice cases against a large medical center and found that in 71% of the cases, plaintiffs stated that they had a negative relationship with the care-givers. The issues included feelings of abandonment; feeling that discomfort had been ignored; not receiving explanations about the care given or expected outcomes; and feeling that the patient's or family's opinions were discounted.

In another situation, a defense attorney for health care providers found that a plaintiff refused to name a certain nurse in the lawsuit, even though the nurse was clearly negligent. The plaintiff felt that this nurse was the only one who gave compassionate care.

Effective communication, compassionate care, and treating patients with dignity increases both patient and professional satisfaction. The end result is patients who are less likely to initiate lawsuits, and health care workers who are less likely to end up in court.

Resources

PERIODICALS

Beckman, H.B., et al. "The Doctor-Patient Relationship and Malpractice: Lessons from Plaintiff's Depositions." Archives of Internal Medicine 154, no.12 (1994): 1365.

Calloway, S. "Preventing Communication Breakdowns." RN 64, no. 1(2001): 71-72, 74.

Crane, Mark. "NPs and PAs: What's the malpractice risk?" Medical Economics 77, no. 6 (March 20, 2000).

Helm, A., and N. Kihm. "Is Professional Liability Insurance for You?" Nursing 31, no. 1 (2001): 48.

Martin, G.A. "ARNA Workplace Advocacy Newsletter. Torts-R-Us." Arkansas Nursing News 17, no. 4 (2001): 16-18.

Mock, K. "Keep Lawsuits at Bay with Compassionate Care." RN 64, no. 5 (2001): 83-84, 86.

ORGANIZATIONS

American Bar Association (ABA). 750 North Lake Shore Drive, Chicago, IL 60611. (312) 988-5000 or (800) 964-4253.

American Nurses Association. 600 Maryland Ave. SW, 100 W., Washington, DC 20024. (800) 274-4ANA. <http://www.nursingworld.org>.

OTHER

Allied Health Professionals Policy. HCPro. 2001. <http://www.credentialinfo.com/cred/pandp/ahppolicy.cfm> (July 28, 2001).

Abby Wojahn, R.N.,B.S.N.,C.C.R.N.

Cite this article
Pick a style below, and copy the text for your bibliography.

  • MLA
  • Chicago
  • APA

"Malpractice." Gale Encyclopedia of Nursing and Allied Health. . Encyclopedia.com. 12 Nov. 2018 <https://www.encyclopedia.com>.

"Malpractice." Gale Encyclopedia of Nursing and Allied Health. . Encyclopedia.com. (November 12, 2018). https://www.encyclopedia.com/medicine/encyclopedias-almanacs-transcripts-and-maps/malpractice

"Malpractice." Gale Encyclopedia of Nursing and Allied Health. . Retrieved November 12, 2018 from Encyclopedia.com: https://www.encyclopedia.com/medicine/encyclopedias-almanacs-transcripts-and-maps/malpractice

Learn more about citation styles

Citation styles

Encyclopedia.com gives you the ability to cite reference entries and articles according to common styles from the Modern Language Association (MLA), The Chicago Manual of Style, and the American Psychological Association (APA).

Within the “Cite this article” tool, pick a style to see how all available information looks when formatted according to that style. Then, copy and paste the text into your bibliography or works cited list.

Because each style has its own formatting nuances that evolve over time and not all information is available for every reference entry or article, Encyclopedia.com cannot guarantee each citation it generates. Therefore, it’s best to use Encyclopedia.com citations as a starting point before checking the style against your school or publication’s requirements and the most-recent information available at these sites:

Modern Language Association

http://www.mla.org/style

The Chicago Manual of Style

http://www.chicagomanualofstyle.org/tools_citationguide.html

American Psychological Association

http://apastyle.apa.org/

Notes:
  • Most online reference entries and articles do not have page numbers. Therefore, that information is unavailable for most Encyclopedia.com content. However, the date of retrieval is often important. Refer to each style’s convention regarding the best way to format page numbers and retrieval dates.
  • In addition to the MLA, Chicago, and APA styles, your school, university, publication, or institution may have its own requirements for citations. Therefore, be sure to refer to those guidelines when editing your bibliography or works cited list.