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Professional Liability

Professional liability may arise when a person practicing his or her profession improperly performs the duties of that profession, and someone is injured as a result. Professional liability can affect any type of professional, including accountants, architects, clergypersons, dentists, doctors, engineers, lawyers, and psychologists, but these types of claims most often involve members of the medical and legal professions. If any professional breaches the applicable standard of care and injury results, the injured party may bring a professional malpractice suit to recover his or her damages. A lawyer experienced in professional liability law can help determine whether malpractice has occurred and can represent the accused professional throughout the entire litigation process.

The typical malpractice suit alleges that the professional defendant was negligent. Negligence is conduct that falls below a legally established standard of care that must be met in order to protect others from an unreasonable risk of harm. The plaintiff in a malpractice case must show that the negligent defendant violated a reasonable standard of care, which usually means the level of care that is the customary or usual practice of other members of the profession. If, for example, a doctor leaves a surgical tool inside a patient's body, that doctor has violated a basic standard of care through his or her carelessness. Similarly, if a lawyer fails to file a client's lawsuit within the time limits prescribed by law, the attorney may be charged with negligence and be subject to professional liability. Few malpractice claims are, however, as clear as these examples.

Although there are certain distinct features in cases involving the different professions, there are also some elements common to nearly all professional liability cases. For instance, the plaintiff in a malpractice case generally must establish four elements in order to recover. First, the plaintiff must show that the professional being sued had a duty to him or her. Second, the plaintiff must prove that the professional breached that duty. Third, the plaintiff must then show that he or she was injured. And fourth, the plaintiff must establish that the professional's breach was the proximate cause of the injury.

Proximate cause is a legal concept that poses the question, "Was the breach of duty sufficiently responsible for the injury so that the professional should be held accountable?" Consequences that are so remote from the breach that they could not have been anticipated may be deemed not proximately caused by the breach. If, for instance, a dentist's tooth-bleaching method fails on a patient who happens to be an actor, who as a result loses a part in a toothpaste commercial, and the actor then loses his home because he has no income, which results in severe depression, it is unlikely that any breach of duty by the dentist proximately caused all of the actor's damages.

Specific types of professional liability include that for dental, legal, and medical malpractice. Dental malpractice is in many respects like medical malpractice, except that it is limited to claims involving dentists, orthodontists, endodontists, dental hygienists, dental assistants, and other dental professionals. The elements of a claim are basically the same as in any malpractice case. The plaintiff must prove that the dental professional had a duty to him or her, that the duty was breached, that the plaintiff was injured, and that the dental professional's breach proximately caused the injuries. If the plaintiff is unable to establish these elements, the dental professional will not be held liable.

Legal malpractice deals with negligence by lawyers and other legal professionals, such as paralegals. Legal malpractice claims can be based on attorneys' negligent errors, negligence in their professional relationships, or fee disputes. Legal malpractice claims can even be claims filed against the lawyer by an adversary or non-client. Lawyers are popular targets for malpractice claims because, as with doctors, the stakes are often high and a mistake can have grave consequences.

Medical malpractice claims may be based on any bad, unskilled, or negligent treatment by a doctor or other medical professional or institution that injures a patient. The majority of professional liability suits filed in the United States involve medical professionals, not because they are more prone than other professionals to making mistakes, but because when they do, the consequences are so serious. Many of the legal concepts applied in malpractice cases against other professionals had their beginnings in the medical malpractice context.

Other professionals, too, are increasingly becoming the targets of malpractice suits. Accountants, for instance, may be sued if they fail to comply with generally accepted accounting principles or generally accepted auditing standards and someone is injured. In addition, if a building turns out to be unsafe, the architect who designed it may be held liable for the resulting property damage or personal injuries. The list of professionals who may be subject to claims for malpractice is as long as the list of all professions.

A lawyer can help determine whether a plaintiff's allegations make a legitimate case for professional liability. Whereas some lawyers can assist in any type of malpractice case, others specialize in malpractice by only one or two types of professionals. In any case, professional liability defense is of critical import, not just to alleviate or minimize damages, but also in order to protect the accused professional's reputation and enable him or her to focus on doing the work of the chosen profession. Accordingly, it is imperative that experienced professional liability counsel be retained in every potential malpractice case.

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