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When is a Lawyer or Doctor Responsible for Malpractice?


Jacqueline D. CarmichaelGenerally, claims for malpractice, whether against a lawyer or a doctor, require 3 elements. First, the lawyer or doctor must breach a duty that is owed to his client/patient. Second, the breach must cause harm. Third, there must be damages that arise as a result of the harm caused by the breach. When these three elements are present, a lawyer or doctor may be held responsible for malpractice.

Specifically, a lawyer may be held responsible for malpractice under three separate theories including (1) professional negligence, (2) breach of fiduciary duty and (3) breach of contract. With regard to professional negligence, the standard of care is competence. This means that the lawyer’s representation of his client must demonstrate that he/she has handled the client’s claim in a competent manner. Competence can be defined as having a knowledge of the substantive and procedural rules of law that apply to the case, the case law that is relevant to the claim and how to pursue the claim from beginning to conclusion in compliance with the applicable rules. Lawyers may not miss filing deadlines and must comply with all court orders. Just as physicians have a duty to do no harm, lawyers also have a duty not to make mistakes that jeopardize their client’s ability to pursue their valid legal claims. If mistakes are made that foreclose a client’s ability to pursue his/her claim, the lawyer can be held responsible for malpractice.

A lawyer’s duties do not end with the obligation to provide competent legal representation. A lawyer also owes his/her client a fiduciary duty. This fiduciary duty includes a duty of loyalty, a duty of confidentiality, and a duty to disclose material facts to the client. The duty of loyalty means that a lawyer must not represent anyone whose interests conflict with those of his already existing client. This ensures that the lawyers interests are always aligned with the client’s, and the client can count on the lawyer’s “loyalty” and never be concerned that the lawyer’s loyalties lie elsewhere. The lawyer’s duty of confidentiality is similar to the duty of loyalty in that it inspires the client to have trust and confidence in his lawyer. The duty of confidentiality means that, with very few exceptions, the lawyer must keep confidential all information divulged to him by his client unless the client gives express permission to release the information. Finally, the lawyer’s fiduciary duty also includes a duty to disclose material facts to the client. This means that if there are facts known to the lawyer that materially affect the client’s claim, the lawyer must disclose those facts to the client so the client can make informed decisions about the prosecution of his/her claim. If the lawyer fails in his fiduciary duties to his client and those failures cause his client harm, he may be held responsible for malpractice.

Finally, a lawyer must abide by the terms of any written contracts he has with his client including the retainer agreement. The retainer agreement includes terms governing the payment of legal fees and costs, when and how the attorney client relationship can be terminated by either party and how the termination will be handled. It may include other terms of the attorney’s representation of the client as well. If the attorney violates the terms of the agreement, he may be held liable for malpractice.

With regard to doctors, they owe their patients a duty to comply with the applicable “standard of care” in the treatment they provide to their patients. The standard of care is determined by what “reasonable” physicians in the same specialty would do in a similar circumstance. If the doctor deviates from the standard of care, he has breached a duty he owes to his patient. If that breach causes the patient harm, then the doctor may be held responsible for malpractice. On the other hand, if the breach does not result in any harm to the patient and/or if the patient likely would have had a similar outcome even in the absence of the breach, there is no valid claim for malpractice against the physician.

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