Page - PROFESSIONAL LIABILITY
What is Professional Liability Law?
Professional liability law governs legal proceedings brought by patients and clients who have suffered as a result of the negligent actions of a professional. These cases are usually filed in the state where the defendant lives or does business. General principles of negligence law apply, as well as statutory provisions that establish matters such as the amount of time the plaintiff has to file suit after discovering the professional’s mistake. A number of states place limits on the amount of damages that can be recovered in a professional liability case, and may require claims to be submitted to a review panel before the matter can be heard in court.
Types of Professional Liability Claims
Theoretically, a negligence claim can be brought against any type of professional whose careless actions have harmed the plaintiff. But due to the difficulty and expense of pursuing a civil lawsuit, most claims are based on significant financial losses or physical harm to the plaintiff. Thus, defendants usually include surgeons and other medical providers, attorneys, engineers, architects, CPAs, securities brokers and other financial advisors, real estate agents, tax professionals, and so forth. Members of all these professions can commit errors and omissions, the results of which may be irreversible.
Duty to Exercise Reasonable Care
The law takes into account the fact that no one is perfect. Mistakes happen, and not every momentary lapse of judgment or skill will give rise to liability for an otherwise competent professional. On the other hand, the law does not tolerate flippant handling of critically important matters, and if an avoidable mistake is made, the professional (or the professional’s insurance company) will be required to pay for the resulting damages. The test is whether, in light of the surrounding circumstances, the conduct fell below the reasonable standard of care for service providers in that field.
The reasonable care test is a flexible standard, and the surrounding circumstances are often determinative. Consider the example of a lawyer who forgot to serve a trial witness with a subpoena (a legal document requiring the witnesses to appear). The witness does not show up at the trial to testify on behalf of the lawyer’s client, and because the witness was not under subpoena, the judge denies a continuance request. The client ends up losing the case.
Assume the lawyer had no reason to believe the witness would not show up. Furthermore, the witness had very little to say, and the testimony likely would not have made a difference in the outcome. Under these facts, forgetting to serve the subpoena might be construed as a reasonable mistake. But now assume the lawyer knew the witness did not want to appear at the trial due to hostile feelings toward the client. The witness had crucial information, and the client probably would have won the trial had the jury heard the witness testify. Under these facts, the lawyer’s oversight was unreasonable, and the client may have a professional liability claim against the lawyer.
Expert Evaluations, Consulting, and Testimony
Experts play an important role in professional liability cases. Proving fault can be a difficult task, primarily due to the complexity of the subject matter. Especially in cases involving medical mistakes, the plaintiff must be able to educate the jury on complicated practices and procedures. Each person in the jury must come to understand what the defendant was trying to accomplish, how things went wrong, and what it all means for the plaintiff – now, and in the future.
To assist with this undertaking, plaintiffs in professional liability cases hire an expert-witness familiar with the defendant’s line of work. For example, in a medical case involving errors committed during childbirth, the plaintiff would hire another obstetrician who could explain, in plain language, how the defendant failed to exercise reasonable care. Experts hired for this purpose are skilled at using models, graphs, and other exhibits to clarify esoteric concepts for their audience.
During the course of litigation, an expert will be called upon to deliver his or her opinions regarding the case on several occasions. First, the plaintiff will supply the expert with all the documents, photographs, interview transcripts, court pleadings, and other evidence from the case, and ask the expert to form an opinion with respect the defendant’s conduct. The expert will give the opinion in the form of a written report. Next, the expert will be asked to attend a deposition, during which the defendant’s lawyers will ask questions about the expert’s conclusions. Finally, experts may be called to testify at trial and once again explain their findings, this time to the jury.