malpractice

1. Improper or negligent treatment of a patient, as by a physician, resulting in injury, damage, or loss.
2. Improper or unethical conduct by the holder of a professional or official position.
3. The act or an instance of improper practice.

For more information on malpractice, visit Britannica.com.

Improper or immoral conduct of a professional in the performance of his duties, done either intentionally or through carelessness or ignorance; commonly applied to physicians, surgeons, dentists, lawyers, and public officers to denote negligent or unskillful performance of duties where professional skills are obligatory.

In medicine and dentistry, a professional person’s act or failure to act that was the proximate cause of an injury to a patient and that was below the standard of care required.

The breach by a member of a profession of either a standard of care or a standard of conduct.

Malpractice refers to negligence or misconduct by a professional person, such as a lawyer, a doctor, a dentist, or an accountant. The failure to meet a standard of care or standard of conduct that is recognized by a profession reaches the level of malpractice when a client or patient is injured or damaged because of error.

After the 1970s the number of malpractice suits filed against professionals greatly increased. Most malpractice suits involved doctors, especially surgeons and other specialists who performed medical procedures with a high degree of risk to their patients. Large damage awards against doctors resulted in higher malpractice insurance costs. Similarly, the increase of malpractice awards against lawyers led to higher insurance premiums and caused some insurance companies to stop writing malpractice policies altogether.

The typical malpractice suit will allege the tort of negligence by the professional. Negligence is conduct that falls below the legally established standard for the protection of others against unreasonable risk of harm. Under negligence law a person must violate a reasonable standard of care. Typically this has meant the customary or usual practice of members of the profession. For example, if a surgeon leaves a sponge or surgical tool inside a patient, the surgeon's carelessness violates a basic standard of care. Likewise, if an attorney fails to file a lawsuit for a client within the time limits required by law, the attorney may be charged with negligence.

Medical Malpractice

Among physicians, malpractice is any bad, unskilled, or negligent treatment that injures the patient. The standard of care formerly was considered to be the customary practice of a particular area or locality. Most states have modified the "locality rule" into an evaluation of the standard of practice in the same or similar locality, combined with an examination of the state of development of medical science at the time of the incident. This modification has taken place as medicine has become increasingly uniform and national in scope. A majority of states define the standard of conduct as that degree of skill and learning ordinarily possessed and used by other members of the profession. A doctor who has met the standard, as established by expert testimony at trial, cannot generally be found negligent. Some states have passed statutes that establish the standard of the profession as the test of whether particular treatment was negligent.

Specialists within the medical field are generally held to standards of care that are higher than those for general practitioners. In addition, a specialist or anyone undertaking to perform procedures ordinarily done by a specialist will be held to the level of performance applied to that specialty, although the person may not actually be a certified specialist in that field.

A small number of states apply the "respectable minority rule" in evaluating doctors' conduct. This rule exempts a physician from liability where he chooses to follow a technique used only by a small number of respected practitioners. Courts, however, frequently have difficulty in determining what is a respectable minority of physicians or acceptable support for a particular technique.

Some states use the "error in judgment rule." This principle holds that a medical professional who otherwise subscribes to applicable professional standards should not be found to have committed malpractice merely because she committed an error in judgment in choosing among different therapeutic approaches or in diagnosing a condition.

Legal Malpractice

The four general areas of legal malpractice are negligent errors, negligence in the professional relationship, fee disputes, and claims filed by an adversary or nonclient against a lawyer. As in the medical field, lawyers must conform to standards of conduct recognized by the profession.

A lawyer has the duty, in all dealings and relations with a client, to act with honesty, good faith, fairness, integrity, and fidelity. A lawyer must possess the legal skill and knowledge that is ordinarily possessed by members of the profession.

Even after the lawyer and the client terminate their relationship, a lawyer is not permitted to acquire an interest that is adverse to a client, in the event that this might constitute a breach of the attorney-client privilege. A lawyer cannot use information that he obtained from a client as a result of their relationship. For example, it would constitute unethical behavior for an attorney to first advise a client to sell a piece of property so it would not be included in the client's property settlement upon divorce and then to purchase the property from the client for half its market value.

Any dealings that a lawyer has with a client will be carefully examined. Such dealings require fairness and honesty, and the lawyer must show that no undue influence was exercised and that the client received the same benefits and advantages as if she had been dealing with a stranger. If the client had independent legal advice about any transaction, that is usually sufficient to meet the lawyer's burden to prove fairness.

A lawyer also has the duty to provide a client with a full, detailed, and accurate account of all money and property handled for her. The client is entitled to receive anything that the lawyer has acquired in violation of his duties to the client.

If a lawyer fails to promptly pay all funds to his client, the lawyer may be required to pay interest. A lawyer is liable for fraud — except when the client caused the attorney to commit fraud — and is generally liable for any damages resulting to the client by his negligence. In addition, a lawyer is responsible for the acts of his associates, clerks, legal assistants, and partners and may be liable for their acts if they result in losses to the client.

Negligent errors are most commonly associated with legal malpractice. This category is based on the premise that an attorney has committed an error that would have been avoided by a competent attorney who exercises a reasonable standard of care. Lawyers who give improper advice, improperly prepare documents, fail to file documents, or make a faulty analysis in examining the title to real estate may be charged with malpractice by their clients. A legal malpractice action, however, is not likely to succeed if the lawyer committed an error because an issue of law was unsettled or debatable.

Many legal malpractice claims are filed because of negligence in the professional relationship. The improper and unprofessional handling of the attorney-client relationship leads to negligence claims that are not based on the actual services provided. Lawyers who fail to communicate with their clients about the difficulties and realities of the particular claim risk malpractice suits from dissatisfied clients who believe that their lawyer was responsible for losing the case.

Another area of legal malpractice involves fee disputes. When attorneys sue clients for attorneys' fees, many clients assert malpractice as a defense. As a defense, it can reduce or totally eliminate the lawyer's recovery of fees. The frequency of these claims is declining, in part perhaps because attorneys are reluctant to sue to recover their fees.

A final area of legal malpractice litigation concerns claims that do not involve a deficiency in the quality of the lawyer's legal services provided to the client, but an injury caused to a third party because of the lawyer's representation. This category includes tort claims filed against an attorney alleging malicious prosecution, abuse of process, defamation, infliction of emotional distress, and other theories based on the manner in which the attorney represented the client. These suits rarely are successful except for malicious prosecution. Third-party claims also arise from various statutes, such as securities regulations, and motions for sanctions, such as under Federal Rule of Civil Procedure 11.

See: Attorney Misconduct; Ethics; Health Care Law; Medical Malpractice; Physicians and Surgeons.

In human medical practice, malpractice means bad, wrong or injudicious treatment of a patient professionally; it results in injury, unnecessary suffering or death of the patient. The court may hold that malpractice has occurred even though the physician acted in good faith. Also, malpractice may occur through omission to act as well as commission of an unwise or negligent act.
In veterinary practice, a client may proceed against a veterinarian if loss has been incurred and damages are sought. Malpractice suits are much more common in American law than in English law, where negligence suits are more usual. Misconduct charges are usually brought by the professional registering body, whose objective it is to preserve the reputation of the profession against the excesses of nonconformists and incompetents.

Mistakes or negligent conduct by a professional person, especially a physician, that results in damage to others, such as misdiagnosis of a serious illness. Damaged parties often seek compensation by bringing malpractice suits against the offending physician or other professional.

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Tort law

Part of the common law series

Intentional torts

Assault · Battery False imprisonment Intentional infliction of emotional distress (IIED)

Property torts

Trespass (land · chattels) Conversion Detinue · Replevin · Trover

Defenses

Consent · Necessity Defense of self · of others · of property

Negligence

Duty of care · Standard of care Proximate cause · Res ipsa loquitur Calculus of negligence Rescue doctrine · Duty to rescue

Specific types Negligent infliction of emotional distress (NIED) Employment-related · Entrustment Malpractice (legal · medical)

Liability torts

Product liability Ultrahazardous activity

Nuisance

Public nuisance Rylands v. Fletcher

Dignitary torts

Defamation · Invasion of privacy False light · Breach of confidence Abuse of process Malicious prosecution Alienation of affections · Seduction

Economic torts

Fraud · Tortious interference Conspiracy · Restraint of trade

Liability, defences, remedies

Comparative / contributory negligence Last clear chance · Eggshell skull Vicarious liability · Volenti non fit injuria Ex turpi causa non oritur actio Neutral reportage · Damages Injunction · Torts and conflict of laws

Duty to visitors

Trespassers · Licensees · Invitees Attractive nuisance

Other common law areas

Contracts · Criminal law · Evidence Property · Wills, trusts and estates

Portals

Law

v • d • e

For other uses, see Malpractice (disambiguation).

In law, malpractice is a type of negligence in which the misfeasance, malfeasance or nonfeasance of a professional, under a duty to act, fails to follow generally accepted professional standards, and that breach of duty is the proximate cause of injury to a plaintiff who suffers damages. It is committed by a professional or her/his subordinates or agents on behalf of a client or patient that causes damages to the client or patient. Perhaps the most publicized forms are medical malpractice and legal malpractice by medical practitioners and lawyers respectively, though malpractice suits against accountants (Arthur Andersen) and investment advisors (Merrill Lynch) have featured in the news more recently.^{[citation needed]}

See also

• Medical malpractice
• Legal malpractice

This entry is from Wikipedia, the leading user-contributed encyclopedia. It may not have been reviewed by professional editors (see full disclaimer)

Dansk (Danish)
n. - forsømmelse, uagtsomhed, uredelighed

Nederlands (Dutch)
ongeoorloofde praktijken (m.n. medisch), wangedrag, misdaad

Français (French)
n. - (Admin, Jur) malversation (gestion des affaires), (US, Méd) erreur médicale

Deutsch (German)
n. - Amtsvergehen, Übeltat

Ελληνική (Greek)
n. - αντιεπαγγελματική συμπεριφορά, αδίκημα, αμέλεια

Italiano (Italian)
scorrettezza professionale

Português (Portuguese)
n. - mau procedimento (m)

Русский (Russian)
противозаконное действие, злоупотребление доверием

Español (Spanish)
n. - procedimientos ilegales o desleales, negligencia, incuria, hecho delictivo

Svenska (Swedish)
n. - tjänstefel, försyndelse

中文（简体）(Chinese (Simplified))
不当治疗, 渎职, 失态

中文（繁體）(Chinese (Traditional))
n. - 不當治療, 瀆職, 失態

한국어 (Korean)
n. - 의료과오, 위법행위 , 부정행위

日本語 (Japanese)
n. - 医療過誤, 背任行為

العربيه (Arabic)
‏(الاسم) سوء تصرف, سوء إستعمال‏

עברית (Hebrew)
n. - ‮רשלנות מקצועית (בעיקר: רופא), שחיתות, פעילות לא חוקית‬

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