Also known as: professional malpractices · malpractice · professional negligence
Written by attorneys · grounded in primary & secondary sources — see below
A tort claim arising when a licensed professional breaches the duty of care owed to a client or patient by failing to meet the standard of skill and diligence expected in the profession and proximately causing harm.
Penelope Price retained Pierce Patterson to handle a personal injury suit. Patterson asked her to sign an agreement capping his liability for any future errors at the amount of his fee. Price had no separate lawyer review the document before signing. When Patterson later missed a key deadline and the claim was lost, the agreement provided no protection against her malpractice suit.
Paige Porter missed the statute of limitations on Preston Pratt's contract claim. She paid Pratt from her own funds to hide the error and never told him he might have a malpractice claim or suggested he consult independent counsel. The disciplinary board found the concealment and conflict of interest warranted sanctions beyond ordinary negligence.
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Prime Logistics hired Perry Pratt to file a cargo-damage suit. Pratt miscalculated the limitations period and the claim was barred. The client sued for malpractice and recovered damages. The bar declined to impose discipline because the single miscalculation did not demonstrate unfitness to practice.
Pinnacle Holdings sued its former law firm for overbilling and inadequate representation in a merger. The firm obtained and used the client's discovery responses and internal instructions to defend the malpractice claim. The court permitted the disclosure under the self-defense exception because the client had placed the representation at issue.
Pierre Poulin met with Prism Analytics' counsel for an initial consultation about a potential trade-secret claim. The lawyer evaluated the facts, gave advice on next steps, and never followed up. The statute of limitations expired without warning. Poulin sued for malpractice and the court held that the consultation created an attorney-client relationship and duty of care.
Pacific Bank relied on an audit report prepared by an accounting firm for a borrower. The report contained errors that the bank claimed caused it to extend a bad loan. The court held that the auditors owed no duty of care to the bank as a nonclient absent a direct relationship or known intended reliance.
A single negligent act such as missing a deadline may support a civil malpractice claim but does not by itself warrant discipline unless the conduct is so gross as to show unfitness to practice.
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An attorney-client relationship and duty of care can arise from an initial consultation where the lawyer gives legal advice and the prospective client reasonably relies on it, even without a formal retainer.
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A lawyer may not make an agreement prospectively limiting liability to a client for malpractice unless the client is independently represented in making the agreement.
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The self-defense exception permits a firm to obtain and use client communications and work product necessary to defend itself when the client has placed the representation at issue by alleging malpractice or overbilling.
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…external world and ultimately in the self, modelled upon the trusting relationship established during therapy." (Dawidoff, The Malpractice of Psychiatrists, 1966 Duke L.J. 696, 704.) Patients will be helped only if they can form a trusting relationship with the psychiatrist. ( Id., at p. 704, fn. 34; Burham, Separation…