Illinois Law
Illinois Personal Injury Defense Law: Medical & Professional Malpractice
- Personal Injury Defense Law: Medical & Professional Malpractice
Personal Injury Defense Law: Medical & Professional Malpractice
Professional 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 than other professionals to committing malpractice.Rather, historical and social factors have made it easier to sue doctors than other professionals. Also, the medical work by its nature makes people susceptible to major injurysome people only see doctors when they are already very sick. As it has become easier and more common to sue other professionals for malpractice, many of the concepts developed in medical malpractice lawsuits are being adopted for use in other professional malpractice lawsuits. Thus, many key concepts of professional malpractice are explained using medical examples. A good understanding of how medical malpractice law has developed can help one understand how to defend medical malpractice and other professional malpractice lawsuits.
Medical Malpractice
"Medical malpractice" does not apply only to medical doctors; other health care providers commit, and can be sued for, medical malpractice.Psychologists, dentists and nurses are just a few of the numerous types of health care professionals who can be sued for medical malpractice.A key to understanding any medical malpractice lawsuit is comprehending the elements of malpractice.Under Illinois law, a person makes out a basic case of medical malpractice by establishing four elementsduty owed to the patient, breach of the duty, causation, and damages to the patient. A party accused of medical malpractice defends himself 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 in which the medical professional admits the existence of all required elements, but argues there is something that excuses the actions.
Duty Toward the Patient
The first element in any medical malpractice lawsuit is a duty owed to the patient. Without a legal duty to act, a medical professional cannot be liable, even for standing by and doing nothing while a person suffers. Thus, the first question to address in a medical malpractice lawsuit is whether the medical professional had a duty to the plaintiff.Often this question is easily answered. When a patient goes to a doctor with a problem and the doctor agrees to treat the patient, the doctor has assumed a duty to treat the patient. By agreeing to diagnose or treat the patient the doctor has indicated that he or she has the appropriate training and skill to adequately care for the patient and has become obligated to do so.
Cases in which the duty owed a patient is contested generally arise in the context of a doctor who has done nothing toward the patient (nonfeasance), rather than having done something incorrectly (malfeasance). Generally, in the American system of jurisprudence, a person has no affirmative duty to help others, unless there is some special relationship between the two parties. A doctor dining out at a restaurant has no general duty to help someone experiencing a heart attack. Because the law imposes no duty to act, the doctor may continue his or her meal and do nothing to help the heart attack victim. If, however, the person having the heart attack is the doctor's child, the law does impose a duty to act because of the parent-child relationship. Despite the apparent callousness of this rule, it remains the law in most states. Illinois has altered this rule, but only slightly, with the Illinois Good Samaritan Law. Under the Good Samaritan Law, a civilian has no duty to provide aid to an injured person; however, once a person voluntarily assists someone, he or she becomes liable for any injury that results from the failure to exercise due care. Thus, if a doctor at a restaurant rushes to help the victim of a heart attack, the doctor may assume a duty to continue to aid the patient.
An important area of medical malpractice law receiving increased attention in the courts is the issue of under what circumstances a doctor owes a duty to persons other than the patient. For example, a pedestrian injured by an automobile driver who suffers an epileptic seizure while driving might charge that the driver's doctor violated a duty to the general public, including the pedestrian, by failing to properly diagnose and treat the driver's epileptic condition. The victim of a domestic assault might charge that the perpetrator's psychiatrist had a duty to warn the victim of the patient's unstable condition.
Breach of the Duty Owed to the Patient
A breach of the duty owed to a patient in a medical malpractice situation results if the doctor injures his or her patient by using less skill and care than a reasonably competent doctor would use in diagnosing or treating the same condition. In order to avoid liability for medical malpractice, a physician mustat a minimumuse the same level of care that a reasonably competent doctor would use under the same circumstances. In most cases, a plaintiff must present expert testimony on what the applicable standard of care was in his or her particular case. Medical malpractice lawsuits often become battles in which each side has expert witnesses declaring different levels of acceptable medical standards.In practice, a doctor is considered reasonably competent if he or she keeps abreast ofand usescurrent, commonly accepted methods of treatment. However, if there is more than one commonly accepted method of treatment, a doctor is free to use whichever he or she chooses, as long as the method is accepted by a substantial number of physicians. A doctor who clearly disregards well-established medical standards or who attempts to perform medical procedures clearly beyond his or her capabilities is not using the same level of care that a reasonably competent physician would use. Anyone injured by such a careless doctor would almost certainly recover damages from the doctor in a medical malpractice suit. When examining the actions of a generalist, Illinois courts usually ask whether the physician applied the degree of skill and learning possessed by members of the profession in similar localities or communities. However, when the professional accused of medical malpractice is a specialist, his or her actions are judged against the actions of members of the specialty profession across the nation.
Causation
The third element of a medical malpractice lawsuit is causation. Causation frequently is divided into two separate inquirieswhether the professional's actions in fact caused the harm to the patient, and whether the professional's actions were the proximate cause of the patient's harm. The "cause in fact" inquiry is usually answered with a "but for" test. That is, a doctor's action caused the patient harm if, but for that action, the patient would not have been harmed.The proximate cause inquiry asks whether, if those actions did in fact cause the harm, the professional ought to be held responsible for his or her actions. In some rare instances, the physician's actions are so removed from the final harm to the patient that the law cuts off liability for those actions by saying that the conduct was not proximate to the harm. In other words, there is not a close enough connection between the action and the harm to say there is proximate causation. Sometimes this causation inquiry is answered rather easilya doctor gives a patient the wrong drug and that drug causes permanent injury. Thorny issues arise when the harm to the patient had more than one cause. For example, two doctors, acting independently, might both prescribe the same wrong medication. If "but for" analysis is applied to each doctor's actions in isolation, it cannot be said that his or her actions were the cause of harm to the patient because the patient would have been harmed by the malpractice of the other doctor. Different jurisdictions have created their own rules to deal with "multiple cause" injuries. In Illinois, the courts have ruled that when there is more than one person whose conduct contributed to an injury or death, proximate causation can be established by showing that a particular defendant's actions were a factor in causing the plaintiff's injury. In such a situation, the damages are awarded based upon the percentage of fault as determined by the jury, as long as the plaintiff is not more than 50 percent comparatively negligent.
Damage to the Patient
A person who is the victim of medical malpractice can sue for the injuries and all direct consequences of those injuries. "Direct consequences" include any mental or physical pain and suffering caused by the careless doctor, and any lost wages resulting from the injury. Due to the seriousness of some negligent actions, awards can be quite high.Defending a Medical Malpractice Claim
As noted, a health care professional defends a malpractice action by arguing the plaintiff failed to prove the case or by asserting an affirmative defense.Failure to Prove Malpractice
In order to prove that a medical professional acted negligently, the plaintiff must prove all four elementsduty owed to him or her, breach of the duty, causation, and harm. If one of these elements is missing, the plaintiff loses the case. For example, suppose a plaintiff proves that his or her treating doctor had a duty to conduct a thorough examination, but breached the duty by failing to notice a wart that should have been removed. Suppose, too, that the plaintiff had the wart removed subsequent to a second examination, and suffered no additional pain or cost by the delay. Even if the plaintiff successfully proved that the doctor was careless in the first examination, the plaintiff will not recover because there was no compensable injury or harm. Thus, the first question when faced with a medical malpractice lawsuit is whether there is an argument to be made that one of the elements does not exist. A doctor may argue he or she had no duty to the patient's sister, who he or she met only once, or that the failure to remove the wart for one year caused his or her patient no harm.Affirmative Defenses
As described above, a defendant asserting an affirmative defense admits, for the purpose of argument, that the plaintiff can establish the existence of all four elements of a medical malpractice action, but that there exists some other factor to excuse the medical professional's actions.Consent is the most frequently asserted affirmative defense in medical malpractice lawsuits. In order to establish the affirmative defense of consent in Illinois a defendant must show that a patient was informed of all risks associated with a procedure and that the defendant did not go beyond the procedure to which the plaintiff consented. Doctors and hospitals have tried to protect themselves from medical malpractice lawsuits by having patients sign consent forms before they receive treatment. These consent forms typically include warnings that medicine is an imperfect art, not an exact science, and that patients must assume all the risks of any procedures. By signing a consent form, a person does not give up his or her right to sue the medical professional if things go wrong. Such an agreement may not be valid if the doctor does not fully inform the patient of the risks associated with the particular procedure. In other words, only a complete and informed consent is valid. However, even a valid consent form is no protection for a doctor who either acted beyond the scope of the consent or who failed to perform the procedure according to well-accepted medical standards. A patient also may sue a medical professional if a person other than the one named on the consent form performs the procedure.
The Future of Medical Malpractice Lawsuits
Medical malpractice lawsuits have been targeted as one of the factors contributing to the spiraling costs of health care. Medical malpractice suits have increased dramatically both in frequency and in the amount of damages awarded. As a result, the price doctors pay for medical malpractice insurance has soared. These costs are passed on to patients in a seemingly endless cycle. Calls are frequently heard in Congress and in state legislatures to put caps on the amount of money judges or juries can award in medical malpractice lawsuits. The theory behind these proposals is that too many judges and juries fail to see the connection between spiraling malpractice awards and spiraling medical costs. Proponents of this legislation argue that people hurt by bad medical care should be compensated, but that the current system relies too heavily on emotional appeals in the courtroom and less on reasoned analysis of how much the victims of medical malpractice truly need to be compensated for their loss. Medical professionals also are seeing the scope of their professional duty expanding. In Illinois, health care professionals are "mandated reporters" under the Abused and Neglected Child Reporting Act. This means they have a duty imposed by statute to report actual or suspected cases of child abuse. Not only does a failure to report expose a medical professional to criminal liability, but a failure potentially exposes the professional to professional malpractice liability, as well.Legal Malpractice
An increasingly common target of professional malpractice lawsuits are lawyers themselves. Although there is no precise definition of legal malpractice, generally speaking, a lawyer commits legal malpractice when he or she fails to provide quality legal services to a client. Bad conduct that is not unique to lawyers may lead to a lawsuit, but does not constitute legal malpractice.For instance, a lawyer who misses deadlines, inadequately prepares for a trial, misses numerous court dates or client appointments, or represents both sides in a dispute without informing both parties, commits legal malpractice.A lawyer who steals funds from the client or assaults the client has committed a crime but probably has not committed legal malpractice.Defending Against Legal Malpractice Claims
A legal malpractice lawsuit also has four elements that parallel the elements of a medical malpractice actionexistence of an attorney-client relationship, breach of the duty owed to the client, injury to the client, and causation between the lawyer's actions and the harm to the client. A judge or jury examines all four elements in a legal malpractice trial and if any element is missing, the plaintiff cannot recover. Thus, to understand how an attorney defends himself or herself against a claim of legal malpractice it is necessary to understand how Illinois courts interpret each of these four elements.Existence of an Attorney/Client Relationship
The duty that a lawyer owes a client has two componentslegal competency and fiduciary obligations. The lawyer must exercise the legal skill that a reasonable, competent attorney would exercise. No lawyer is expected to know the law so well that he or she can give perfect answers to every legal question, but every lawyer is expected to know how to research issues and to recognize the limit of his or her knowledge. A lawyer's fiduciary duty includes undivided loyalty to the client's interests and confidentiality. As part of this fiduciary duty, a lawyer has an obligation to disclose any conflicts of interest that might impair his or her loyalty to the client or any personal constraints that might affect his or her ability to represent the client.Many legal malpractice suits have centered on the question of when these duties to a client arise. There is an important distinction between consulting an attorney about a legal matter and retaining that attorney to handle the matter. Generally speaking, only retaining an attorney obligates him or her to act on behalf of a client. Many have learned this lesson the hard way. They thought that consulting a lawyer about their legal problem meant that their case was being handled by that attorney so they stopped taking steps to pursue their claim. Meanwhile, the lawyer allowed the statute of limitations to run out on the claim because the lawyer did not believe that he or she had been retained to act on the client's behalf. Many legal malpractice suits have disputed whether an original office visit with a lawyer constituted a consultation or a hiring. Closely related to the issue of whether an attorney/client relationship has been formed in an initial consultation is that of whether an attorney gives legal advice to a potential client during the initial consultation.
The lesson for lawyers and prospective clients is that both parties be absolutely clear as to whether the lawyer has or has not been hired. If an attorney declines to handle a case, he or she should be clear about that, and take care to suggest that the individual seek other counsel. If the individual believes that the attorney has been hired, he or she should be absolutely clear regarding what steps he or she believes the lawyer will take to handle a matter.
Breach of Duty to the Client
Breach of duty is frequently the toughest element to prove in a legal malpractice lawsuit because a lawyer can make mistakes and still not commit professional malpractice.Law is an inexact science. Competent lawyers frequently disagree on the best course of action in particular legal matter. A client may be able to show that another lawyer would have pursued a different strategy, but not necessarily show that the first lawyer committed a breach of duty. Even an error in judgment does not create malpractice liability as long as it is within the bounds of honest exercise of professional judgment. Expert testimony generally is required to establish the standard of care that should be applied to an attorney whose conduct is alleged to constitute legal malpractice.However, there are some behaviors almost any judge or jury could call legal malpractice even in the absence of expert testimony. For example, if an attorney missed a filing deadline and allowed a statute of limitations to expire, thereby causing a court to dismiss a lawsuit, then the client would have a strong case for legal malpractice.Legal Injury
When a plaintiff claims breach of duty, the plaintiff must show not only the alleged breach of duty, but the injury caused thereby. A lawyer might miss a deadline, but if the court subsequently grants an extension, the client is not injured. If missing the deadline bars the plaintiff's claim, the plaintiff has a better chance of demonstrating an injury. A lawyer might forget to assert a claim, but if the claim would have been denied anyway, the client has not been injured. Usually a plaintiff in a legal malpractice action can only recover direct economic losses, such as the money needed to pay another attorney to re-do legal work or any fees or penalties paid because of an attorney's malpractice.It is difficult, although not impossible, to recover for speculative losses (what might have happened if a different lawyer had been hired), emotional losses, or legal expenses incurred hiring a new lawyer to sue the previous lawyer.Proving legal malpractice can be difficult because merely losing a case is not sufficient grounds to recover for malpractice.Many strategic legal decisions are based on an attorney's background and experience. Even if a lawyer made a significant error in judgment that the client thinks caused the loss of the case, he or she does not automatically have the basis for a legal malpractice lawsuit. The same standard of reasonableness that applies in other areas of malpractice law also applies here. An attorney's honest mistake will be judged against what a reasonable and knowledgeable attorney would have done. All states set statutes of limitations on legal malpractice lawsuits. In some states, the time limit begins when the plaintiff discovers that he or she has been harmed; others begin when legal service is rendered.
Causation
Finally, as is true with medical malpractice claims, the plaintiff in a legal malpractice action must show that the breach was both the actual and proximate cause of the plaintiff's injury. An attorney's actions are the cause of a client's injury if, but for those actions, the client would not have been harmed. Proximate cause means that the breach was sufficiently responsible for, or sufficiently related to, the injury such that the lawyer should be held responsible.Causation is easiest to prove if a lawyer misses a deadline or gives advice that is clearly wrong. In these cases, the client usually can show exactly what would have happened had the lawyer met the deadline or given correct advice. Causation is more difficult to show when a lawyer pursues a wrong course of action in trial. In this case, the client has to show what the judge or jury would have done had the lawyer chosen another strategy. This can be difficult. The client needs to prove, to the judge's or jury's satisfaction, what another lawyer would have done, and how the jury and/or judge would have reacted to that strategy. The first lawyer might argue successfully that even if a different strategy had been pursued, the outcome of the case would have been the same.
The Future of Legal Malpractice Lawsuits
Attorneys who try legal malpractice cases have had increasing success recently with new theories of liability for legal malpractice.One trend focuses on attorney investments and financial dealings. Courts have found that a lawyer breached a fiduciary duty to a client by failing to reveal stock ownership in an opposing corporate party or by using insider information learned about the client to make profits in the stock market.A growing trend is for courts to allow claims brought against lawyers by persons other than clients. For example, the beneficiaries under a client's will might bring a legal malpractice action against a lawyer who incorrectly drafted a deceased client's will if the beneficiaries are dissatisfied with their share of the estate. Depositors in a failed savings and loan company might sue lawyers who gave advice to the savings and loan.
Accountant Malpractice
While the number of professional malpractice lawsuits against doctors is leveling off nationally, the number of professional malpractice lawsuits against accountants is on the rise. There are a number of theories to explain why lawsuits against accountants are becoming more common. Perhaps the most likely explanation is that with the growing number of business insolvencies, lenders and investors are looking to other parties from whom to recoup losses. Accountants appear to be easy targets because often they are close to the heart of business decision making. Whatever the reason for the increasing number of lawsuits against them, accountants need to be aware of the ways they can become liable for the results of their work.As is true for doctors and lawyers, an accountant can be sued for malpractice if he or she performs a service at a level below that which would be expected of a competent accountant. An accountant cannot be sued merely because of an honest mistake; he or she must be found to have made an error that a reasonable accountant would not have made.
Accounting malpractice lawsuits differ in a number of important ways from medical or legal malpractice lawsuits. One of the most important differences between accountant malpractice lawsuits and medical or legal malpractice lawsuits is the role played by written compilations of standards of conduct for the accounting and auditing professions. These rules, known as Generally Accepted Accounting Principals (GAAP) and Generally Accepted Auditing Standards (GAAS), frequently are used in accountant malpractice lawsuits to judge the actions of defendants. Although blind adherence to these standards is not an absolute defense to malpractice liability, it is a powerful defense against an allegation of malpractice if a defendant can show that his or her actions complied with a rule found in GAAP or GAAS.
Another way in which accountant malpractice lawsuits differ from medical or legal malpractice lawsuits is that many accountant malpractice cases are based on violations of federal and state statutes relating to the sale of securities. Accountants' financial statements frequently are used in connection with various kinds of securities offerings and frequently are submitted with annual reports or other periodic filings companies must make in order to comply with requirements of the Securities and Exchange Commission. If the financial statements are erroneous and lead to negative market impacts, then investors may try to recoup their losses by asserting securities claims against the accountants who prepared the statements. The statutes most commonly used to bring claims against accountants are the Securities Act of 1933, the Securities Act of 1934, and the Racketeer Influenced and Corrupt Organizations Act (RICO). Each of these Acts is quite complex and a discussion of their intricacies is beyond the scope of this chapter, but an attorney experienced in defending accountants against charges of professional malpractice can advise accountants of their responsibilities and potential liabilities under these Acts.
Engineer and Architect Malpractice
Engineers and architects also can be sued for professional malpractice.Engineers and architects can be liable for the actual construction and design of a building if the structure proves unsafe or unsound, or they can be liable for negligent review of a building under construction or remodeling. If an engineer or architect reviews a structure and declares it sound to a prospective buyer, and it is discovered later that the building needed structural repairs, the buyer may have grounds for a professional malpractice lawsuit against the engineer or architect.Lawsuits that allege that an architect or engineer committed professional malpractice differ substantially from medical or legal malpractice lawsuits in that virtually all agreements between an architect or engineer and an owner are in standardized written contracts. These lawsuits hinge more on interpretation of contract than on the application of common law principles. Another distinguishing factor of professional malpractice lawsuits against engineers and architects is that standard contracts used in the engineering and architecture professions often call for disputes to be submitted to binding arbitration. The standard contract used by engineers and contractors can be modified. However, architects and engineers should seek advice from an attorney experienced in disputes between owners and architects or engineers before agreeing to modify the terms of a standard form contract. Often, even seemingly innocuous language changes can substantially shift liabilities between the parties. For example, disputes often arise over the standard of care to be applied in judging the professional's actions. The standard of care against which an engineer's or architect's actions generally are judged is the "ordinary and reasonable skill usually exercised by one in that profession." Some owners suggest changing the language to require the architect or engineer to exercise the "highest professional standards." While these words may appear to be innocuous, they never should be integrated into an agreement, because they can set impossibly high standards for any architect or engineer to meet.
Resources
Irving J. Sloan, Professional Malpractice (Oceana Publications, Dobbs Ferry, NY 1992).
Thomas J. Shroyer, Accountant Liability (Wiley Law Publications, New York, NY 1995).
Architect and Engineer Liability: Claims Against Design Professionals (Robert F. Cushman & Thomas G. Bottum, eds. (Wiley Law Publications, New York, NY, 2d ed. 1995).
James Acres, Architects and Engineers (Shepard's/McGraw-Hill, Colorado Springs, CO, 3d ed. 1993).