1 Minnesota Professional & Medical Malpractice Law Personal Injury Law: Professional & Medical Malpractice o Legal Malpractice Duty Breach Injury Proximate Cause o Medical Malpractice Duty Breach Injury Proximate Cause Third-Party Lawsuits Consent Forms o Resources Professional & Medical Malpractice Law A malpractice lawsuit can be brought against any kind of professional, including psychologists, clergy, accountants, financial advisors, doctors and lawyers. Two common types of professional malpractice claims are those against doctors and lawyers. Legal Malpractice There is no precise definition of legal malpractice. A lawyer commits legal malpractice when he or she fails to provide quality legal services to a client. Bad conduct that is not unique to lawyers may lead to a lawsuit but does not constitute legal malpractice. For instance, a lawyer who misses deadlines, does inadequate preparation for a trial or represents both sides in a dispute without informing both parties commits legal malpractice. A lawyer who steals funds from the client, assaults, or defrauds a client has committed a crime but probably has not committed legal malpractice. A legal malpractice lawsuit generally has four elements: duty, breach, injury and proximate causation. A judge or jury examines all four elements in a legal malpractice trial and if any element is missing, the plaintiff cannot recover. Duty A lawyer's duty has two components. A lawyer must exercise the legal skill that a competent attorney would exercise and must meet all of his or her fiduciary
2 obligations to the client. Fiduciary obligations include undivided loyalty to the client's interests and confidentiality. No lawyer is expected to know the law so well that he or she can give perfect answers to obscure legal questions. Lawyers are expected to know how to research issues and to recognize their limits when they reach an unsettled or unclear area of law. Breach A lawyer commits a breach if he or she fails to do his or her duty. Breach is frequently the toughest element to prove in a legal malpractice lawsuit because a lawyer can make mistakes and still not commit a breach. Law is an inexact science; even competent lawyers frequently disagree on the best course of action in a particular legal matter. Sometimes the strategy chosen is a combination of knowledge about the law and guesswork about how a judge or jury will react to the facts of a case. A client may be able to show that another lawyer would have pursued a different strategy, and the client still may be unable to show that the first lawyer committed a breach. Injury A plaintiff must show that he or she was injured by the lawyer's breach of duty. A lawyer might miss a deadline, but if he or she is subsequently granted an extension, the client is not injured. If missing the deadline bars the plaintiff's claim, he or she could recover full damages. A lawyer might forget to assert a claim, but if the claim would have been denied anyway, the client has not been injured. Usually a plaintiff can only recover direct economic losses, such as the money needed to pay another attorney to re-do legal work or any fees or penalties paid, or for any interest income lost because of an attorney's malpractice. It is difficult, although not impossible, to recover for speculative losses (what might have happened if a different lawyer had been hired), emotional losses or legal expenses incurred hiring a new lawyer to sue the previous lawyer. Proximate Cause Finally, the client must show that the breach was the proximate cause of the plaintiff's injury. Proximate cause is a thorny legal concept that essentially asks whether the breach was sufficiently responsible for the injury so that the lawyer should be held accountable. Proximate cause is easiest to prove if a lawyer misses a deadline or gives advice that is clearly wrong. In these cases, the client can usually show exactly what would have happened had the lawyer met the deadline or given correct advice. Proximate cause is more difficult to show when a lawyer pursues a wrong course of action in trial. In this case, the client has to show what the judge or jury would have done had the lawyer chosen another strategy. This can be difficult to show. The client needs to prove, to the judge or jury's satisfaction, what another lawyer would have done
3 and how the jury would have reacted to that strategy. The first lawyer might argue successfully that, even had a different strategy been pursued, the outcome of the case would have been the same. Attorneys who try legal malpractice cases have had increasing success recently with new theories of liability for legal malpractice. One trend focuses on attorney investments and financial dealings. Courts can find that a lawyer breached a fiduciary duty to a client by failing to reveal stock ownership in an opposing corporate party or by using insider information learned about the client to make profits in the stock market. Another growing trend is for the court to allow claims brought against lawyers by persons other than clients. For example, if a lawyer incorrectly drafts a now-deceased client's will, the client's beneficiaries might bring a legal malpractice action against the lawyer if they are upset with their share of the estate. Depositors in a failed savings and loan company might sue lawyers who gave advice to the savings and loan. Medical Malpractice Medical malpractice includes many forms of liability-producing conduct that occur in rendering medical services. Medical malpractice does not apply solely to medical doctors. Psychiatrists, dentists, nurses and hospitals can be sued for medical malpractice. Wrongful conduct that is not unique to doctors or other health care professionals may give rise to a legal action, but does not meet the definition of medical malpractice. For example, a patient might bring a breach of contract claim against a doctor who fails to provide services agreed upon in a contract, or a patient might bring fraud charges against a doctor for misrepresenting his or her expertise. These are not medical malpractice claims. A medical malpractice lawsuit generally has four elements: duty, breach, injury and proximate causation. A judge or jury examines all four elements in a medical malpractice trial and if any element is missing, the plaintiff cannot recover. Duty A doctor who has agreed to treat a patient has a duty to that patient to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. One problem in determining duty is that the average jury member or judge may not be able to determine what a doctor should have done in a particular instance. Medical malpractice lawsuits require expert testimony from another doctor as to the standard of care that should have been given. The plaintiff needs an affidavit from a medical expert when starting a lawsuit. There are many complex questions in deciding what testimony to allow. In every case, the judge must decide whether a doctor's actions are to be judged
4 against all other doctors or only against doctors specializing in a particular type of practice. Some judges may allow evidence of what other doctors in the same region would do while some judges allow testimony about what other doctors nationally would have done. Success in a medical malpractice case frequently depends on how a judge answers these questions. Breach A person breaches a duty when he or she fails to use the same level of care another reasonably competent professional would exercise in the same circumstances. Breach is frequently the toughest point to prove in a medical malpractice lawsuit because competent doctors frequently disagree on the best course of action in a particular medical matter. Like law, medicine is an inexact science. A client may show that another doctor would have taken a different course of action and still be unable to show the first doctor committed a breach. The plaintiff must prove the level of care a reasonably competent professional would have exercised and show that the defendant's actions fell short of that level. Injury Injury is usually not difficult to prove in medical malpractice actions. A patient dies, is left crippled or perhaps has chronic pain. Often, the doctor has most trouble disproving this element because it can be difficult to prove that a patient who claims to be injured is not injured. Many legitimate injuries, such as whiplash, have few quantifiable manifestations even though they cause their sufferers to feel pain. Proximate Cause Finally, proximate causation can be difficult for a patient to prove because a bad result does not necessarily equal malpractice. Even with excellent treatment, a patient might not recover totally from the condition for which he or she seeks treatment. A doctor accused of malpractice might be able to show that even had a different treatment been followed, the patient would have suffered identical injuries. Third-Party Lawsuits Third persons can sometimes bring medical malpractice lawsuits against doctors. For example, a person who gets an infectious disease from a friend might sue the friend's doctor for inadequately treating the disease. A person injured in an automobile accident might bring a medical malpractice lawsuit against the driver's doctor if the doctor medicated the patient without telling the patient not to operate a car afterward.
5 Consent Forms Consent forms required by most doctors and hospitals typically include warnings that patients must assume all the risks of any surgical procedures. By signing one of these forms, a patient does not give up all right to sue if things go wrong. Such an agreement may not be valid if a doctor does not fully inform the patient of risks associated with a particular procedure. Even a valid consent form is no protection for a doctor who either performs surgery that goes beyond the consent given or who fails to perform a procedure according to medical standards. Resources Office of Lawyers' Professional Responsibility, 25 Constitution Avenue, Suite 105, St. Paul, MN 55155, (612) or (to file a complaint about an attorney's behavior).