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Malpractice Actions by Mind Map: Malpractice Actions
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Malpractice Actions

MALPRACTICE In a malpractice action, the Plaintiff alleges that the Defendant, who is a professional, injured the Plaintiff while performing his or her profession. Malpractice actions are based solidly in negligence theory. The person alleged to have injured the Plaintiff claims to have special knowledge and skills, like a doctor or a lawyer.  A malpractice lawsuit basically says that the professional person negligently performed his or her duties, that injury occurred, and that it occurred as a direct result of the professional’s actions while performing in his or her professional capacity. The Defendant (professional person) is held to a higher standard than in a typical negligence case. The standard typically used is the “reasonable person standard.” In a malpractice case, this standard is varied slightly. The Plaintiff would have to show that the professional person failed to exercise the same degree of skill, knowledge, and care as other professionals in that particular professional community.


LEGAL MALPRACTICE Legal malpractice claims have risen dramatically in the last decade. When a Plaintiff brings a legal malpractice claim, the allegation is that the attorney failed to perform his or her professional duties and that failure resulted in an identifiable loss to the client. Remember that the lawyer is responsible for the acts of those in his or her law office. The attorney can be sued for malpractice for the acts and omissions of his or her employees.

Elements of Legal Malpractice

  ELEMENTS OF A MALPRACTICE ACTION 1. Duty    2. Breach         3. Proximate cause         4. Damages   Just as in any negligence action, negligence elements must be proved. These elements are discussed further in the subtopics attached to this subtopic.

Defenses to Legal Malpractice

DEFENSES TO LEGAL MALPRACTICE Legal malpractice resembles medical malpractice in many ways. Many of the same defenses are available. 1.       Contributory negligence of the client—a client could be contributorily negligent if he or she fails to do something that the attorney asks of the client in the best interest of the case.   2.       The attorney used his or her best judgment—the client is hiring someone has a wealth of knowledge, experience, and skill and must use his or her best judgment. If a client asks an attorney to do something that is illegal or unethical, the attorney is prohibited from doing the act.  


MEDICAL MALPRACTICE Medical malpractice occurs when a physician’s deviation from the accepted standard of care is the proximate cause of the patient’s injury. Medical malpractice us based on one of several theories—battery, contracts, or negligence. Further, these cases are brought against all kinds of medical professionals, not just against doctors.


BATTERY When a patient alleges an offensive or harmful contact by a medical professional, the claim is essentially a battery case. Almost all medical treatment involves some form of physical contact between the provider and the patient. Remember that the professional must be acting within the scope of his or her professional duties. If a medical provider gets into a fist-fight with a patient at a bar, medical malpractice will not be available as a cause of action.


CONTRACTS Recovery in a medical malpractice case could be based on contract law, in that there is either an express or implied contract between the patient and the medical providers. As in all contract-based actions, the patient must prove that there was a doctor-patient (or medical provider-patient) relationship between the two parties in the malpractice case.


NEGLIGENCE A majority of medical malpractice cases are based on negligence theory. Because of this, the elements of negligence must be proved. 1.       There was a duty of the doctor to the Plaintiff 2.       Breach of that duty 3.       Proximate cause 4.       Damages suffered by the Plaintiff These elements are discussed further in a separate subtopic.

Special Injuries

SPECIAL INJURIES There are unusual, or specific, special types of cases available in medical malpractice claims. 1.       Wrongful Birth 2.       Wrongful Death 3.       Wrongful Adoption   See the subtopics attached for further information.

Basic Elements of Malpractice Action

ELEMENTS OF A MALPRACTICE ACTION 1. Duty    2. Breach         3. Proximate cause         4. Damages   Just as in any negligence action, negligence elements must be proved. These elements are discussed further in the subtopics attached to this subtopic.           

Defenses to Medical Malpractice

DEFENSES TO MEDICAL MALPRACTICE 1.       Statute of Limitations—statutes that limit the time during which a Plaintiff can bring a lawsuit. The difficulty is to determine when the statute begins to run. If the patient knows about the physician’s negligence, the statute begins to run when the patient learns of the negligence. Statutes of limitations are state specific.   2.       Contributory Negligence by the Patient—when the patient fails to seek care and the injuries are aggravated as a result, the Plaintiff can be contributorily negligent. Depending on whether the state is a contributory negligence state or a comparative negligence state, this defense could be a complete bar.

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