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Are all attorney or legal malpractice claims based on negligence law?

No, legal malpractice law can occur based on contract law and breach of fiduciary duty. Remember that you sign a contract with an attorney when you enter into an attorney-client relationship. If the attorney violates the terms of that contract, he or she can be liable for breach of contract.

Also, an attorney owes a client a duty of loyalty and a duty of confidentiality. This imposes a special duty—called a fiduciary duty—upon the attorney. If the attorney

LegalSpeak: Pennsylvania court on the need for expert testimony in medical malpractice cases—Grossman v. Barke (Pa.Super 2005)

One of the most distinguishing features of a medical malpractice suit is, in most cases, the need for expert testimony, which may be necessary to elucidate complex medical issues to a jury of laypersons. In other words, "[b]ecause the negligence of a physician encompasses matters not within the ordinary knowledge and experience of laypersons[,] a medical malpractice plaintiff must present expert testimony to establish the applicable standard of care, the deviation from that standard, causation and the extent of the injury." Id.

The expert testimony requirement in a medical malpractice action means that a plaintiff must present medical expert testimony to establish that the care and treatment of the plaintiff by the defendant fell short of the required standard of care and that the breach proximately caused the plaintiff's injury. Hence, causation is also a matter generally requiring expert testimony.

Indeed, "a jury of laypersons generally lacks the knowledge to determine the factual issues of medical causation; the degree of skill, knowledge, and experience required of the physician; and the breach of the medical standard of care." Id. at 1149. In such cases, "[t]he cause and effect of a physical condition lies in a field of knowledge in which only a medical expert can give a competent opinion .... [Without experts] we feel that the jury could have no basis other than conjecture, surmise or speculation upon which to consider causation."

violates either of those duties, then the attorney may be on the hook for a malpractice claim for breach of fiduciary duty.

What are statutes of limitations?

Statutes of limitations—often referred to as limitations of actions—refer to the required time periods to sue in a case. Most personal injury tort suits have a one-year statute of limitations. This means that a plaintiff must file suit within that one-year window or forfeit their legal rights forever. Note that not all states have the same statute of limitations. It can vary dramatically from state to state.

What is the discovery rule and how does it impact statutes of limitations in tort cases?

The discovery rule is a rule that often operates as an exception to a statute of limitations. For instance, let's say that an attorney performs legal services negligently upon a client three years earlier and the statute of limitations for an attorney malpractice case is one year from the date of the negligence. However, the person does not reasonably discover the attorney's negligence for three years. By strict operation of the statute of limitations, the client cannot sue the attorney because the statute of limitations has passed or expired.

The discovery rule imposes a limitation on the statute of limitations. It provides that the statute does not begin tolling, or running, until the client reasonably discovered or should have discovered the underlying negligent or harmful act.

What is a statute of repose?

A statute of repose is a special type of statute of limitations that imposes an absolute bar on liability after a certain period of time. Statutes of repose are passed in order to provide defendants—often manufacturers of products—a sense of protection after a certain point in time.

The difference between a statute of limitation and statute of repose is that a statute of limitation does not accrue, or start to run, until the plaintiff reasonably discovers the underlying problem. A statute of repose, which is longer, begins to run immediately upon the creation of the product or the delivery of services.

For example, let's say that the manufacturer of a swimming pool designed a pool in 1999. In 2010, a young swimmer jumped off the diving board and hit his head on the bottom of the sloping-downward pool. The tragic injury was caused by a design defect in the pool—that the slope of the pool in the deeper end should have been steeper so as to prevent any type of injury. However, the state has a 10-year statute of repose for design defects in product liability cases. The statute of repose in this instance may well bar the lawsuit.

 
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