Who can commit malpractice?
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Any professional who is licensed by the state and holds themselves out as having special skills can commit malpractice. While this means that there are many types of professionals that can technically commit malpractice, the term "malpractice” is generally only used when referring to the substandard work of health care professionals, accountants, stockbrokers, and lawyers. While the substandard work by other licensed professionals is still actionable, it will generally be labeled “negligence” instead of malpractice.
Proving Malpractice: Breaching a Professional Duty of Care
Before a licensed professional can commit malpractice, they must first owe you a professional duty of care. A health care professional owes you a duty of care as soon as they treat you for an illness or injury. A duty of care is generally created with an attorney when the contract is signed, or other agreements to represent you have been made. When a licensed professional provides you with a level of work that is so substandard it is a gross deviation from how another reasonable professional in the same occupation would act, this is a breach of their duty of care, and the first step to committing malpractice.
Examples of Breach of Duty of Care in Malpractice
Let's say your stockbroker agreed to keep your assets in a diverse portfolio and then without your knowledge or consent, transferred them all to a high-risk stock to benefit himself. This would be a breach of their professional duty to you. If you confided in your therapist that you were abused as a child, and the therapist told their friends, or anyone else, this would also be a breach of a professional duty of care.
Malpractice Claims and Seeking Damages
To successfully recover damages in a malpractice claim, you will need to show that because of the licensed professional’s breach, you have suffered damages. Malpractice is committed when the licensed professional breaches their duty of care and this breach results in injury to their client. This injury can be physical, monetary, and/or emotional. If you can show that the licensed professional intentionally breached their duty of care to you, you may be able to recover punitive damages, which a court will award to punish the negligent party. However, you will not be able to recover damages if there has not been an injury.
Say, for example, you had a substantial financial gain after your stockbroker transferred all of your assets into a high-risk stock without your permission. While this may have been a breach of the stockbroker's professional duty to you, this action did not result in any injury. This means you will not have a malpractice claim. Likewise, if a doctor’s misdiagnosis causes you additional injury and this injury heals quickly and does not require any additional medical attention, or cause you to take time off work, you have probably not suffered any recoverable damages, even though the doctor may have breached his duty of care to you.
Proving a malpractice claim can be difficult. If you believe you have sustained injuries from a licensed professional’s breach of duty, you should contact an attorney that specializes in malpractice suits to ensure that you do not lose the right to your recovery.