What is Professional Negligence?
In this day and age, most Americans have heard of medical malpractice. But there are other types of malpractice, too. It can also occur in the legal, financial services and information technology (IT) sectors – just to name a few. In such cases the malpractice is called professional negligence.
Differentiating between ordinary and professional negligence
Negligence is one of those legal terms often used in different contexts. For instance, ordinary negligence occurs when an individual or business fails to take certain actions, or acts in a careless or reckless manner – damaging someone in the process. A common example is a scenario in which a business fails to clear an icy sidewalk in a timely fashion and a customer slips, falls and breaks his leg.
Professional negligence occurs when someone acting in a specialized capacity fails to fulfill the duty of care they have to a client, and the client incurs losses as a result.
Elements of professional negligence – understanding the duty or standards of care
But what is a duty of care?
As we just noted, a duty of care is the legal term for the obligation or responsibility we all have to keep from hurting anyone else. Driving carefully and keeping our property free of hazards are two examples.
In another context, a duty of care is the legal obligation a professional has to follow acceptable standards of conduct and business practices for his or her industry. Therefore, it is also known as a standard of care or standards of care. These standards are generally established through licensing requirements or by administrative boards, committees or government agencies that define them.
Here’s a different way to put it. A duty of care is a professional’s obligation to protect a client from harm by taking reasonable actions based on acceptable standards of conduct and/or business practices.
Elements of professional negligence – resulting damages
In addition to proving that the professional breached his or her duty of care, we must also be able to demonstrate that you (as his or her client) incurred physical, financial and/or other relevant losses.
For example, if a client who got bad investment advice is accusing his or her financial/investment advisor of professional negligence, we must be able to prove that the client incurred financial losses. Or, if a client is accusing a therapist who engaged in improper conduct of professional negligence, we must demonstrate that the client incurred financial and/or emotional damages.
Causation as an element of a professional negligence claim
The third factor that must be present in a professional negligence claim is closely related to the second. This is causation.
It is not enough to show that a professional breached his or her duty of care and you suffered relevant losses. We must also be able to prove that this ‘negligence” is what actually caused the damages. In other words, we must be able to show that you lost money because you got bad investment advice, not because you lost it gambling in Las Vegas.
Without a causal link between the action and damages, you do not have a viable claim.
Foreseeability and multifactor tests in professional negligence cases
If a case does end up in court, the outcome will likely depend on the court’s findings regarding duty of care. The court usually uses a couple of tests to reach this conclusion. One is called a foreseeability test and the other is the multifactor test.
The former is used to assess whether the accused could have realistically anticipated that his or her actions (or lack thereof) would harm the client. That is to say, could the accused have known or assumed that missing a filing deadline, rushing to diagnose a medical condition without all of the test results, or providing financial advice based on outdated information would harm the client?
Then there’s the latter. The multifactor test takes the following into account:
- The magnitude of losses incurred.
- Whether the accused could have done something else.
- The price of doing something else.
- If it would have been safe to do something else.
In summary, the court may find a professional failed to fulfill his or her duty of care if he or she could have reasonably anticipated that his or her actions (or lack thereof) would have harmed the client. The court may also find that the professional did not meet his or her duty of care if: the client incurred significant losses, the professional could have taken another action without incurring greater cost, and taking another action would not have put the client at risk for harm.
Examples of professional negligence
Here are some common examples of professional negligence. An accountant or auditor is professionally negligent if he or she doesn’t meet the deadline for filing a client’s tax form. An architect who makes one or more mistakes while drafting his or her blueprints is also professionally negligent. So is a consultant in the construction industry who recommends a shoddy contractor. Last but not least, a real estate agent or broker who doesn’t tell a client about a known issue with a property has also committed professional malpractice.
If you believe you were a victim of professional negligence, you need competent attorneys who are committed to fighting for you.