Malpractice Law

Malpractice law falls under the professional liability category. The two most common areas of malpractice law are medical malpractice and legal malpractice. Military malpractice laws can influence how medical and legal malpractice claims are handled when plaintiffs or defendants are military personnel.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jun 29, 2022

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  • Malpractice law includes legal malpractice, medical malpractice, and white-collar malpractice cases
  • Physicians win 80% – 90% of medical malpractice cases based on weak evidence
  • The largest number of medical malpractice cases filed between 2009-2018 were filed in New York, California, and Florida
  • States with the highest payments to malpractice plaintiffs during 2009-2018 were Pennsylvania, New York, California, and Florida

Malpractice falls under the professional liability category. Included in the professional liability grouping are legal malpractice for attorneys, white-collar malpractice for professionals such as accountants, financial advisers, and government officials, medical malpractice for doctors, surgeons, and other medical professionals, and some class-action lawsuits.

Over the last 60 or so years, the U.S. has experienced phenomenal growth in medical malpractice litigation. That growth is quite understandable: In the U.S, medical malpractice is the third leading cause of death (250,000 each year).

The following paragraphs briefly describe the history of malpractice law and provide answers to some common legal questions regarding medical malpractice, military malpractice, and legal malpractice.

If you need to speak to a malpractice lawyer today, enter your ZIP code above to connect with affordable malpractice law firms in your area.

What is malpractice law?

Malpractice law is the body of law that holds certain professionals to a higher standard of conduct. The two most common areas of malpractice law are medical malpractice and lawyer malpractice.

Whether it is a medical malpractice lawsuit or other professional malpractice, your malpractice lawyer has to prove the “four D’s of malpractice law” with respect to the facts in your case:

  1. Did the person have a duty toward you? Professionals have a duty to act without negligence toward their clients.
  2. Was there an abandonment or dereliction of that duty?
  3. Was the breach of duty a direct cause of your injury or illness?
  4. Did you suffer a loss (monetary or otherwise) as a result of that injury?

In practical terms, the four D’s mean that your malpractice lawyer must prove that the defendant(s) acted negligently when they breached their duty toward you, and that breach links directly to your injuries. Prove those four things and the defendant is legally liable to compensate you for your injuries.

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What qualifies as medical malpractice?

The following actions or inaction by physicians and other health providers lead to confrontations with medical malpractice lawyers:

  • Failure to diagnose the plaintiff’s condition (failure to diagnose or a delay in diagnosis cause 33% of medical malpractice lawsuits)
  • Misdiagnosis of the plaintiff’s condition
  • Failure to treat the appropriate condition
  • Delay in treatment, causing injury or illness
  • Complications from surgery (for example, pneumonia or blood clots)
  • Poor outcome (poor patient satisfaction or readmission to hospital)
  • Wrongful death, the ultimate negative patient outcome

Who can commit malpractice?

As it happens, 85% of surgeons are likely to face a medical malpractice lawsuit during their career. Malpractice claims against surgeons are followed by claims against healthcare providers practicing in obstetrics and gynecology, eye/ear/nose/throat practices, and anesthesiology.

Incredible as it seems, 78% of medical malpractice lawsuits yield no payment for the plaintiff and a full third of medical malpractice claims settle out of court, either at the pre-trial stage or at some point during the trial. Settlement rewards the plaintiff with money faster than a trial, and the defendant avoids the possibility of a larger verdict at trial.

How does military service affect medical malpractice claims?

The Federal Tort Claims Act (FTCA) is a federal law that sets aside the government’s sovereign immunity protection to allow military personnel to bring medical malpractice claims against a military medical provider for injuries or illness sustained by the military healthcare personnel’s breach of professional standards.

Exceptions to the FTCA are found in the Feres Doctrine. The Feres Doctrine of military medical malpractice law prevents active-duty military personnel from bringing a claim for malpractice for treatment received while on active duty. Their dependents are not barred from medical malpractice claims by the same doctrine.

The FTCA also has a “foreign country” exclusion which bars military medical malpractice claims incurred outside the U.S. even if the illness or injury occurred on a U.S. military base. Military personnel in this predicament may file claims under the Military Claims Act.

Under military malpractice law, claims must be filed within two years after the patients learn they have an injury and the cause of that injury. The military medical center then has six months to evaluate the claim and decide on the appropriate action.

If the military medical provider rejects the claim, the injured person must file a lawsuit in federal court within an additional six-month period.  The decision on whether to hold the federal government liable and to determine the damage amount is up to the federal judge. The FTCA does not allow jury trials.

Is there medical malpractice insurance?

Yes, insurance for malpractice is available, but federal law in the U.S. does not require it. However, some states do require medical professionals to carry medical malpractice insurance.

Insurance requirements will vary, but the seven states that require malpractice insurance are:

  • Colorado
  • Kansas
  • Connecticut
  • Rhode Island
  • Massachusetts
  • New Jersey
  • Wisconsin

Other states require minimum malpractice insurance but only if the doctor wants to participate in the state program created to help with claims.

What qualifies as legal malpractice?

What is legal malpractice? The following actions or inaction by lawyers leads professional malpractice claims:

  • Failure to know the law (failure to research the applicable law)
  • Failure to apply the law correctly (misunderstood how the law works)
  • Inadequate discovery (uncovering financial information of the opposing party)
  • Inadequate investigation of the facts (failure to find witnesses, for example)
  • Failure to file documents (to protect the lawyer’s client)
  • Failure to meet a filing deadline
  • Strategic error in judgment planning a case’s course of action
  • Failure to keep a calendar of important dates (statutes of limitations deadlines, for example)

Some practical ways that failure to conduct business professionally and that may arise to legal malpractice include:

  • Ignoring the case for significant periods of time
  • Getting the case dismissed on grounds the lawyer did not work the case
  • Settling the case without client approval and the settlement figure is significantly less than the case’s estimated value
  • Taking the funds the client provided as a retainer to pay something unrelated to the client’s case

The most common types of attorney malpractice occur among those who practice family law, real estate law, bankruptcy law, estate planning, and personal injury law. The top five errors that lead to legal malpractice cases are:

  1. Breach of professional standards in document preparation, filing, and distribution
  2. Failure to start or move litigation forward
  3. Wrong or inadequate legal advice
  4. Blunders in the area of settlements and negotiations
  5. Errors in pre-trial/pre-hearing matters

If you believe your attorney breached their contract or committed any of the errors above, contact a malpractice lawyer as soon as possible.

What’s the difference between ethical violations and legal malpractice?

Improprieties that involve breaches of ethics stem from codes of professional conduct under state law or the canons of professional ethics adopted by professional legal associations. Accusations of ethics breaches are more common than malpractice claims.

Ethics violations may be at the heart of malpractice cases but just because there is a breach of ethics does not mean the attorney has broken any malpractice laws. It’s unlikely you will be able to take an ethics violation to court unless it has broken state or federal malpractice law.

How do you win a legal malpractice case?

Proving legal malpractice is difficult. You have to prove the following three things:

  1. First, you have to prove the attorney made serious errors in handling your  underlying case;
  2. Then, you have to prove that the case the lawyer worked on would have ended successfully in your favor except for the lawyer’s errors, and;
  3. Finally, you have to prove that, if you won the underlying case, you would have been able to collect damages from the defendant.

Fortunately, legal malpractice claims are relatively rare. The ABA reported that lawyers only have a 4% – 17% possibility for legal malpractice claims against them, a statistical chance that goes up the longer they practice. This pales in comparison to surgeons who have an 85% chance of malpractice claims.

What kind of records do I need for a legal malpractice claim?

It is important to keep a copy of the attorney’s engagement letter outlining what work they promised to do for you. If the attorney made any estimates of how much the case is worth, you should set those down in writing. Keep notes of any phone calls with the date, time, and notation whether it was with an attorney or paralegal, and what was said during the discussion.

Retain documentation of retainers paid to the attorney to pursue your case. The more case-related documents you retain in your folder at home, the better prepared you are in the event of a legal malpractice claim.

Is malpractice law the same in every state?

As discussed above, state malpractice laws and requirements can vary. Some states require malpractice insurance, some states have caps on damages, and still more allow huge payouts for victims of professional malpractice and negligence.

Where you live will impact how long you have to pursue a malpractice claim. Statutes of limitations are set by state law, and the time limit varies from state to state. For example, U.S. states may allow anywhere between one and five years for a claimant to file a malpractice lawsuit.

In most states, the time to file a malpractice lawsuit starts from when the person sustains the injury or, if it was unreasonable for the injured person to know of the injury, the date the person discovers that a medical error caused the injury.

Some states apply the same medical malpractice statute of limitations to malpractice claims of all stripes. Others differentiate between legal and medical malpractice claims. It is important, to know what state laws apply to your claim and what that law requires in terms of filing deadlines to bring actions against defendants for legal malpractice or medical malpractice claims.

Are there state laws that cap malpractice damages?

Thirty-three states passed tort reform legislation of some form that imposes a cap on malpractice damages. Other states impose limitations only on pain and suffering damages. A few states have both limitations.

These limitations will vary based on the type of malpractice claim you’re pursuing, so it’s important to know where your particular state law stands on malpractice damage award limitations. Consulting with a local malpractice attorney will give you valuable insight into the local state laws regarding your case.

Which states have the highest medical malpractice awards?

You can’t really choose which state you are going to bring your malpractice lawsuit to, but it’s interesting to see the states that have the highest and the lowest awards just to see if your state is among them.

The states with the highest malpractice awards are Massachusetts, New York, Pennsylvania, South Dakota, and Alaska.

Texas has the distinction of having the lowest malpractice awards. The following states follow close behind: Arkansas, Idaho, Wisconsin, and Mississippi.

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How much does a malpractice lawyer cost?

Medical malpractice cases are expensive and time-consuming. Legal malpractice claims payments are on the increase, too. Half of the insurance companies who participated in a recent survey reported that they paid a claim of $50 million or more.

Those claims reported included a claim against one law firm for greater than $100 million and another claim for more than $150 million. Insurance companies reported that the claims increase is due to higher pre-trial discovery costs and escalating malpractice attorneys’ fees.

Legal fees vary based on the state you live in, the details of your case, and the kind of malpractice law firm you choose. Malpractice attorney fees can range from pro-bono to upwards of $200,000.

In personal injury cases, medical experts are necessary to prove whether the claimant would have won the underlying case but for the lawyer’s errors. Sometimes more than one expert testifies, which can raise fees.

Deposition costs are also part of the skyrocketing costs of malpractice cases, with fees ranging from $1,000 to $20,000. Deposition fees include court reporter fees and word-processed summaries of deposition testimony.

Paying for the entire cost of a malpractice legal action in advance, or even on a pay-as-you-go basis, would put medical and legal malpractice cases out of the reach of the average person.

In most cases, malpractice attorneys undertake malpractice cases on a contingency fee basis.

A contingency fee means that the injured person does not have to pay the lawyer’s fees in advance of the end of the trial. Rather, malpractice attorneys recover their fees only if and when the plaintiff wins their case. When the plaintiff wins the case, the attorneys take a percentage of the damage award as their fee.

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A Brief History of Malpractice Law

Holding physicians legally responsible for medical mistakes that cause injury to their patients is a concept that appears as far back as the Code of Hammurabi. The Code developed in the ancient city of Babylon in Mesopotamia in 1754 BCE. Roman law also recognized legal ramifications for malpractice and developed a body of law designed to redress those medical wrongs.

With respect to the continent of Europe, beginning in the 1200s CE courts granted relief for the malpractice concept under the common law of torts. Malpractice law came to the U.S. through the appropriation of the English common law.

In the U.S. the first lawsuit for medical malpractice occurred in 1794 and malpractice lawsuits continued throughout the 1800s. It wasn’t until the 1960s, however, that medical malpractice litigation became widespread.

Today, malpractice lawsuits impact healthcare best practices prospectively by changing the way society addresses matters of professional negligence.

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