Florida Law
Florida Personal Injury Law: Medical & Professional Malpractice
Personal Injury Law: Medical & Professional Malpractice
Professional malpractice occurs whenever a professional improperly or unethically performs his or her duties either intentionally or out of carelessness. Plaintiffs suing for professional malpractice must prove that the professional was negligent and breached his or her duty of care, resulting in the plaintiff's injury. This chapter examines some of the issues involved in malpractice lawsuits against doctors, lawyers, engineers, architects, and accountants. Malpractice, though, is not the only way in which a professional can incur liability for job-related improper conduct. A professional may breach a contract or commit an intentional tort against a patient or client. Although such conduct might give rise to a claim against the professional, it is not considered within the rubric of professional malpractice.
Medical Malpractice
Medical malpractice comprises the majority of professional malpractice lawsuits brought in this country. This is not to say that medical professionals are more prone to committing malpractice, but that they are the target of more malpractice lawsuits -- which is not surprising given the gravity of the situations faced everyday by the medical profession. The number of lawsuits against other professionals, however, is increasing and many of the concepts used in those lawsuits are adapted from the medical malpractice context. Thus, an understanding of medical malpractice is a good introduction to professional malpractice generally. It should be pointed out that the term medical malpractice does not apply only to doctors. Other health care professionals, such as psychologists, nurses, dentists, and physical therapists, can also be sued for improper or unethical professional conduct.
As in any malpractice lawsuit, a plaintiff suing for medical malpractice must show the four elements necessary to prove negligence: duty of care, breach of duty, injury, and proximate cause (see the Personal Injury Law: General chapter for more discussion on negligence). A person accused of malpractice can defend him- or herself by showing that one of these elements is missing and/or by establishing an affirmative defense. An affirmative defense is a legal argument that admits the existence of the required elements, but maintains that the plaintiff is also culpable.
Duty of Care
Once a doctor or health care professional agrees to diagnose or treat a patient, he or she has assumed a duty of care toward that patient. What this means is that the health care professional must treat the patient with at least the same level of care as a reasonably competent health care professional. But what about persons who are not patients? For example, does a doctor have a legal duty to help a stranger choking in a restaurant? The answer is no. At present, the law does not place an affirmative duty on anyone, including health care professionals, to render assistance to others in most situations. Of course, a doctor can help if he or she wants to, but there is no legal obligation.
Generally, a health care professional does not have a duty to someone who is not a patient. However, a psychotherapist may have a duty to warn a person if a patient has made specific threats against that person and the patient has the ability to carry out those threats. In such instances, Florida law permits a psychotherapist to breach his or her duty of confidentiality and warn the person threatened by the patient.
Breach of Duty
Unlike ordinary negligence cases, proving that a health care professional breached his or her duty of care involves showing what a reasonably competent health care professional would have done in a similar situation. Unfortunately, most judges or jurors do not have a clue as to what is acceptable medical practice. As a result, medical malpractice lawsuits often become battles between medical experts testifying as to whether the defendant breached his or her duty of care.
In general, a reasonably competent health care professional is one who stays abreast of the relevant treatment literature and uses methods commonly accepted in the profession. A professional who disregards well-established medical standards or attempts to perform procedures beyond his or her capabilities is exposing him- or herself to a possible malpractice lawsuit. Yet health care professionals often differ on the best course of action in a particular situation. Medicine, like law, is an inexact science. What one professional questions as dubious, another may find quite competent. For this reason, proving breach of duty may be a plaintiff's most difficult task in a malpractice lawsuit.
Proximate Cause
Proximate cause is defined legally as a cause which, in a natural and continuous sequence, unbroken by any intervening event, produces injury, and without which, the injury would not have occurred. A simpler way of thinking about proximate cause is that it is an act which caused the plaintiff's injury for purposes of assigning liability. Courts may not find a defendant liable if there is not a clear line of causation between the defendant's act and the plaintiff's injury. In some cases, a defendant may have caused a plaintiff's injury in a technical sense, but the chain of events leading up to the injury was so convoluted and improbable, that the defendant would have had no reason to be aware of any possible risk. In cases where no reasonable person could have foreseen injury to the plaintiff, courts will probably not hold the defendant liable.
It is important to note that causing an injury is not necessarily medical malpractice. A health care professional may have acted in the same manner as any reasonably competent health care professional; and while the professional might have caused the injury, if he or she did not breach the duty of care to the plaintiff, he or she should not be held liable.
Damages
Persons who successfully sue for medical malpractice are entitled to receive compensatory damages which may include damages for pain and suffering or lost wages. Plaintiffs may also be entitled to punitive damages if the malpractice was willful or particularly malicious.
Affirmative Defenses
As described above, a defendant asserting an affirmative defense admits the existence of negligence, but argues that there are other factors which excuse the defendant's conduct. One affirmative defense used in malpractice cases is that of conflicting legal duty. For example, a doctor who releases information about a patient's medical condition normally violates the patient's right to confidentiality and commits malpractice. However, in limited situations, a doctor is legally required to inform others of a patient's medical condition. If a patient suffers from a gunshot wound, the doctor treating him or her must inform the police. Also, a doctor must inform the Florida Department of Health and Rehabilitative Services of anyone with a serious disease of public significance. A doctor treating a minor who appears to be a victim of child abuse must report the condition to the appropriate authorities.
Consent is perhaps the most frequently asserted affirmative defense in medical malpractice cases. Consent means that the health care professional informed the plaintiff of all risks associated with a particular procedure, the plaintiff consented, and the professional did not go beyond the procedures to which the plaintiff agreed. Doctors and hospitals have tried to protect themselves from malpractice suits by having patients sign consent forms before patients receive treatment. These forms typically include warnings that medicine is an imperfect art and that patients must assume all risks for any surgical procedures. But a person does not give up all of his or her rights by signing a consent form -- particularly if a doctor does not fully inform him or her about the procedures, goes beyond the agreed to procedures, or fails to abide by well-established medical procedures. A patient may also sue a doctor or a hospital if a person other than the one named on the consent form performed the surgery.
Florida's Procedure for Filing a Medical Malpractice Claim
Due to the high cost of defending against medical malpractice claims and the corresponding increase in the cost of malpractice insurance, the state of Florida requires that persons intent on filing a medical malpractice lawsuit abide by the following pre-suit procedure:
- At least 90 days before filing suit, a prospective plaintiff must notify each prospective defendant by certified mail. Prior to this notification, a prospective plaintiff must have investigated the grounds for the lawsuit and obtained a written opinion from a medical expert verifying the claim.
- During the 90-day period prior to filing the suit, the prospective defendant's insurer must evaluate the prospective plaintiff's claim and deliver either a rejection of the claim, an offer to settle, or an offer to admit liability and seek arbitration damages.
After completion of the pre-suit investigations, the parties can elect to pursue the traditional litigation process or have damages determined by voluntary binding arbitration. Choosing to arbitrate precludes any other remedy and involves certain limitations on damages, but may be a more expedient method of resolving the dispute.
Legal Malpractice
Lawyers are becoming an increasingly popular target for malpractice suits. Although there is no precise definition of legal malpractice, generally speaking, a lawyer commits malpractice when he or she fails to provide quality legal services to a client. Filing a lawsuit against an attorney for malpractice is different from filing a complaint about an attorney with The Florida Bar. A lawsuit entails proving the attorney committed negligence and entitles a successful plaintiff to damages. A complaint filed with The Florida Bar is processed through the Bar's lawyer grievance system and, if valid, may subject the attorney to disciplinary action. Any loss a person suffers as a result of an attorney's actions is not recoverable through the lawyer grievance system. (For more information about the lawyer grievance system, see the How to Hire an Attorney chapter.)
As in any malpractice lawsuit, a plaintiff suing for legal malpractice must show the four elements necessary to prove negligence: duty of care, breach of duty, injury, and proximate cause. Understanding how Florida courts interpret these four elements in the legal malpractice context is essential to a successful lawsuit.
Duty of Care
In general, an attorney owes a duty of care to a person once that person hires the attorney and becomes a client. However, sometimes there can be confusion as to whether or not an attorney has been hired. Many consumers mistakenly believe that consulting an attorney is the same as retaining or hiring an attorney. It is not. After an initial consultation, consumers are strongly encouraged to clarify with the attorney whether or not the attorney has been retained.
The duty that a lawyer owes a client has two components -- competency and fiduciary. The lawyer must exercise the same legal skill as a reasonably competent attorney. No lawyer is expected to know the law so well that he or she can give perfect answers to every legal question, but lawyers are expected to know how to research issues and to recognize the limits of their knowledge. As a fiduciary of a client, an attorney is obligated to treat all information relating to a client's representation as confidential and to zealously represent the client's interests, including the disclosure of any conflicts of interest that might impair the attorney's ability to represent the client. One Florida court described the duty an attorney owes a clients as follows: "Implicit in every attorney/client contract under Florida law is a covenant by the attorney that he will conduct himself according to customary professional standards . . . . The attorney is under a duty to represent his client with the utmost degree of honesty, forthrightness, loyalty, and fidelity, and must resign if at any time in the course of litigation his interest in the suit becomes adverse or hostile to this client."
Interestingly, some courts are expanding an attorney's duty of care to persons who are not clients. For example, under Florida law, beneficiaries to a will can bring a lawsuit against an attorney who improperly prepared or executed a client's will, resulting in the will being held invalid. Also, depositors in a failed savings and loan may sue attorneys who advised the savings and loan.
Breach of Duty
A lawyer is in breach of his or her duty of care if the lawyer fails to provide reasonably competent representation or violates his or her fiduciary obligations. While proving that an attorney had a conflict of interest or otherwise violated his or her fiduciary obligations may be straightforward, proving an attorney failed to provide reasonably competent representation is more difficult. Lawyers can disagree on whether a particular course of action is reasonably competent. And, it may be unclear whether an alternative course of action would have provided a different result. However, there are some behaviors that clearly go beyond the bounds of competent representation. An attorney who simply forgets a filing deadline and permits the statute of limitations to expire, thereby destroying a client's cause of action, is an obvious candidate for malpractice.
Proximate Cause
Causation is easy to prove if an attorney misses a deadline or gives clearly erroneous advice. But proving causation can be more difficult in cases where an attorney pursues a particular strategy that ends up injuring the client. In suing the attorney, the client (now plaintiff) must show that his or her injury is sufficiently related to the attorney's breach of duty as to be the proximate cause. This may entail showing what would have occurred had the attorney chosen a different course of action. But the variables attendant to proving "what might have been" are numerous, and a defendant-attorney may argue the injury would have occurred regardless.
Keep in mind that suffering an injury as a result of an attorney's representation is not the same as malpractice. The attorney may have acted in the same manner as any reasonably competent attorney, and while the attorney might have caused the injury, if he or she did not breach the duty of care, he or she should not be held liable.
Damages
Successful plaintiffs are entitled to compensatory and possibly punitive damages (assuming the malpractice was willful or particularly malicious).
Accountant Malpractice
Like health care professionals and attorneys, accountants can be sued for malpractice. If an accountant fails to provide services at a level expected of a reasonably competent accountant and a client suffers injury as a result, the accountant may be liable for damages.
Accountant malpractice lawsuits differ in a number of ways from medical or legal malpractice lawsuits. One of the more important differences is the role played by the rules of conduct for the accounting and auditing professions. These rules, known as Generally Accepted Accounting Principles (GAAP) and Generally Accepted Auditing Standards (GAAS), are frequently referred to in accountant malpractice lawsuits. While adherence to these rules is not an absolute defense to liability, it will be difficult for a plaintiff to prove an accountant who acted within the guidelines of these rules committed negligence.
Another difference is that many accountant malpractice lawsuits are based on violations of federal and state statutes relating to the sale of securities. Financial statements generated by accountants are frequently used in connection with securities offerings and are often submitted with annual reports or other periodic filings companies must make in compliance with Security Exchange Commission requirements. If the financial statements are erroneous and lead to a negative on the securities markets, investors may try to recoup their losses by asserting claims against the accountants who prepared those financial statements. The statutes most commonly used to bring such claims are the Securities Act of 1933, the Securities Act of 1934, and the Racketeer Influenced and Corrupt Organizations Act (RICO). A detailed discussion of these acts is beyond the scope of this chapter, but an attorney experienced in accountant malpractice lawsuits can advise potential plaintiffs of the duties accountants have under these laws.
Engineer and Architect Malpractice
Engineers and architects can also be sued for failing to meet a specified duty. If a structure proves to be unsafe, the engineers responsible for building it or the architect who designed it can be held liable. Also, if an engineer or architect reviews a structure for a prospective buyer and carelessly misstates the structure's soundness or durability, he or she can be held liable.
However, unlike medical and legal malpractice lawsuits, the theory of recovery in a lawsuit against an engineer or architect will likely be contract-based as opposed to tort-based. That is, the duty owed to a property owner derives not from the common law notion of negligence, but from any contracts between the property owner and the engineer or architect. It is, therefore, important for a person to have an attorney review such contracts before signing. An attorney should also review any modifications to a contract before they are finalized. Often, seemingly innocuous language can substantially change a person's responsibilities.