malpractice
{{Short description|Area of law concerning negligence by professionals}}
{{Other uses}}
{{Tort law}}
In the law of torts, malpractice, also known as professional negligence, is an "instance of negligence or incompetence on the part of a professional".Malpractice definition, {{cite book|last1=Garner|first1=Bryan A.|title=Black's Law Dictionary|date=2009|publisher=West|isbn=978-0314199492|edition=9|url=https://archive.org/details/blacksl_xxx_2009_00_5869|url-access=registration|access-date=7 December 2017}}
Professionals who may become the subject of malpractice actions include:
- medical professionals: a medical malpractice claim may be brought against a doctor or other healthcare provider who fails to exercise the degree of care and skill that a similarly situated professional of the same medical specialty would provide under the circumstances.{{cite web|title=Malpractice|url=https://www.merriam-webster.com/dictionary/malpractice|website=Merriam-Webster.com|publisher=Merriam-Webster, Inc.|access-date=7 December 2017}}
- lawyers: a legal malpractice claim may be brought against a lawyer who fails to render services with the level of skill, care, and diligence that a reasonable lawyer would apply under similar circumstances.
- financial professionals: professionals such as accountants, financial planners, and stockbrokers may be subject to claims for professional negligence based upon their failure to meet professional standards when providing services to their clients.
- architects and engineers: a construction professional may be accused of professional negligence for failing to meet professional standards in the design and construction of buildings and structures.
Proof of malpractice
Professional negligence actions require a professional relationship between the professional and the person claiming to have been injured by malpractice.{{cite book|last1=Jacobs|first1=Douglas|title=Suicide and Clinical Practice|date=1992|publisher=American Psychiatric Association Publishing|isbn=0880484551|page=[https://archive.org/details/suicideclinicalp00jaco/page/148 148]|url=https://archive.org/details/suicideclinicalp00jaco|url-access=registration|access-date=7 December 2017}} For example, to sue a lawyer for malpractice the person bringing the claim must have had an attorney-client relationship with the lawyer.{{cite web|last1=Bresnahan|first1=Pamela A.|title=Beware the Cocktail Party Client|url=https://apps.americanbar.org/legalservices/lpl/downloads/journalsept99.pdf|website=American Bar Association|access-date=7 December 2017|date=September 1999}}
To succeed in a malpractice action under typical malpractice law, the person making a malpractice claim must prove that the professional committed an act of culpable negligence and that the person suffered an injury due to the professional's error.See, e.g., {{cite journal|last1=Bal|first1=B. Sonny|title=An Introduction to Medical Malpractice in the United States|journal=Clinical Orthopaedics and Related Research|date=February 2009|volume=467|issue=2|pages=339–347|pmc=2628513|doi=10.1007/s11999-008-0636-2|pmid=19034593}}
Medical malpractice
{{main|Medical malpractice}}
Medical malpractice is a highly complex area of law, with laws that differ significantly between jurisdictions.{{cite journal|last1=Marcus|first1=Paul|title=Book Review of Medical Malpractice Law: A Comparative Law Study of Civil Responsibility Arising from Medical Care|journal=Hastings International and Comparative Law Review|date=1981|pages=235–243|url=http://scholarship.law.wm.edu/facpubs/1138/|access-date=7 December 2017}}
In Australia, medical malpractice and the rise in claims against individual and institutional providers have led to the evolution of patient advocates.{{cite web |url=http://www.smh.com.au/business/workplace-relations/patient-advocacy-20150920-gjr53j.html |title=Patient advocacy services ensure optimum health outcomes |last1=Kamaker |first1=Dorothy |date=September 26, 2015 |website=smh.com.au |publisher=The Sydney Morning Herald |access-date=August 23, 2016 }}