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PROFESSIONAL NEGLIGENCE

What is professional negligence?

Professional negligence refers to negligence claims against professionals such as medical doctors, dentists, accountants, and lawyers.

What is medical malpractice?

Medical malpractice claims are a highly visible form of professional negligence claims. If a medical provider provides faulty medical care that results in harm to a patient, that medical provider may well be liable for medical malpractice.

What are examples of professional negligence claims?

Let's say a patient goes into the hospital to have part of his right leg amputated, but, due to an error, the doctor amputates the wrong leg. That appears to be a prime case of negligence. Other cases are more difficult to prove, as when a physician fails to diagnose a form of cancer. The case is more difficult because it is far less obvious that the physician failed to adhere to a reasonable standard of care for physicians. Many professional negligence claims require the plaintiff to produce expert testimony showing that the defendant professional violated the applicable standard of care.

Is expert testimony required in medical malpractice cases?

Yes, expert testimony is required in the vast majority of medical malpractice cases. Physicians are held to the standard of care of similar physicians generally in their locale. This means that a radiologist in Nebraska is held to the standard of

In cases involving medical malpractice, it is frequently essential to have expert testimonials during the trial (iStock).

In cases involving medical malpractice, it is frequently essential to have expert testimonials during the trial (iStock).

care for radiologists in that area of the country—not the prevailing standard at John Hopkins Medical Center in Baltimore.

However, some egregious examples of malpractice do not require expert testimony because a layperson can tell that there has been malpractice. This is sometimes called the "common knowledge" exception for cases of extreme and obvious malpractice. Examples include failing to remove a surgical instrument from a patient's body following a procedure or amputating the wrong arm or leg.

Different states also have special rules regarding expert witnesses in medical malpractice cases. For example, Tennessee has something called the "contiguous state" rule. This means that an expert must be licensed from Tennessee or a state that is contiguous (a state that borders) to Tennessee.

What is the standard of care for a physician?

It depends upon particular state law and the type of physician at issue. For example, a neurosurgeon is held to the standard of care of a reasonable neurosurgeon, not a general surgeon. This means that specialists are often held to more rigorous standards of care than generalists. The other difference between different state laws is that some states hold physicians to a national standard of care, while other state law holds physicians to a local standard of care.

What is an example of attorney malpractice?

Let's say that you were injured in an auto accident after another driver exceeded the speed limit and crossed into your lane of traffic. Clearly, the other driver was negligent in failing to operate her motor vehicle in a safe manner. However, the other driver's insurance company refuses to give you a fair amount of money to repair your vehicle. You contact an attorney and ask him or her to handle the matter. The attorney contacts the other insurance company but then forgets to preserve your claim by failing to file a lawsuit within the requisite one year statute of limitations. This means that you can no longer sue the other driver for negligence, because the statute of limitations has run or expired on your claim. However, you have a very good case against your attorney for missing the statute of limitations.

 
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