As superheroes and martial arts practitioners know, with great power comes great responsibility. Anyone with specialized knowledge or training has a heightened duty to use that knowledge or training responsibly and with due care for the clients relying on their expertise.
In the real world, this is called “professional responsibility.” Failing to act with professional responsibility can leave the practitioner open to charges of professional negligence or, as it is sometimes known, [medical] malpractice. Depending on the circumstances, any professional or expert can be charged with professional negligence.
In negligence law, professional negligence occurs when individuals or businesses fail to carry out the duties or obligations they were hired to complete in a manner consistent with the standards of their profession. Professional services can range from architectural and landscaping services to medical and legal consultations.
Professionals may not simply do the job that an ordinary, reasonable person would do. They must finish the job the same way another person with the same degree of education, experience, and training would do it. If they do not, this can lead to something known as a personal injury, such as bodily injury (in the case of medical malpractice) or emotional trauma, or other forms of hardship.
When someone hires a non-professional to complete a job, that person is only required to carry out the task to the “reasonable person” standard. This means they must put the same degree of reasonable care as any other person might use in carrying out the same task.
If the person fails to carry out the task correctly, they will only be compared to other non-professionals as to whether their performance was reasonable. For instance, if you hire a neighbor to mow your lawn and they accidentally run over your garden hose, any court action will consider whether it was reasonable for an average homeowner to miss seeing the hose, not a professional landscaping company.
Professionals are held to a higher standard because they have more experience and knowledge, and the people who hire them depend on their expertise. You might not be upset if your neighbor ran over your garden hose, but you probably would be if the landscaper did.
The elements of professional negligence and ordinary negligence are very similar. The Plaintiff (you) has the burden of proving that the other party was negligent. What is negligence? What elements do you need to prove to show that the other parties did something wrong?
Duty of care means that the other person or business is responsible for acting in a certain way toward you or doing something according to a contract or agreement. Duty of care in an ordinary negligence case means taking the same amount of care any other person would do to avoid harming others.
A professional liability claim arises because there is a heightened standard of care due to the nature of the relationship. You have placed additional trust in the other person because of their claimed knowledge or expertise, so they have a duty to act in accordance with a professional standard of care.
Breach means failing to act or acting in a detrimental way that violates the duty of care. In an ordinary case, this means acting in a way that a reasonable person would not behave under the circumstances. Speeding is a common example of ordinary negligence.
Breach in a professional case means acting in a way that goes outside the normal standards of conduct in the profession. For instance, suppose an accountant was hired to file tax returns for a large company. It was a busy season, and the accountant got behind, so the returns were filed two days late. Instead of telling the business owner or filing an extension, the accountant said nothing. This is a professional breach.
In all negligence cases, the breach must be the cause of any damages to the plaintiff. For instance, if the company was audited because the CEO was caught in an insider trading sting and not because the accountant failed to file on time, the breach would not be the cause of the audit.
Showing causation in a professional negligence case may require demonstrating industry policies, standards, and practices, such as what is required of a surgeon and how your surgeon departed from those standards. These standards are often part of job descriptions or on professional organization sites.
You may also need to demonstrate that the person or company asserted that they were a professional or expert and that you relied upon them for that reason. To justify legal action, the treatment or services must be below what you expected from a similar professional.
All negligence cases require the plaintiff to have suffered damages. You cannot file a claim for professional negligence based on potential damages or possible harm. Even in the case of the careless accountant, the company would not be able to file a lawsuit if the IRS accepted their tax returns.
Recovery of damages in negligence cases depends upon the type of claim and can include monetary damages such as lost wages and income; physical injury; emotional trauma; fees, fines, and court costs. Punitive damages may be awarded in some circumstances. Your attorney can advise you on what you may be entitled to claim.
You should never attempt to represent yourself in a professional negligence or malpractice claim. A professional company will undoubtedly have its own attorney or legal department to represent it, and you will need professional negligence lawyers on your side. Negligence and malpractice claims are complex matters requiring an attorney skilled in handling the required documentation and evidence.
At Kennedy, Johnson, Schwab & Roberge, L.L.C., we have more than 30 years of experience dealing with professional negligence law and malpractice claims, and we know the best ways to represent our clients in court. If you’ve been the victim of professional negligence and want to know your next move, contact us on our website, and let us help you get the compensation you deserve.
At Kennedy, Johnson, Schwab & Roberge, L.L.C., we handle all cases on a contingency fee basis. This means that we do not get paid unless and until you receive a settlement or a jury award.
Schedule a free, confidential consultation with a skilled Connecticut personal injury lawyer today.