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 two have entered into a contract and the doctor has a duty to treat the patient. By agreeing to diagnose or treat a patient the doctor has indicated that he or she has the appropriate training and skill to adequately care for the patient and has assumed a duty toward the patient.

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). Historically, in the American system of jurisprudence, a person generally had no affirmative duty to help others, absent some special relationship between the two parties. A doctor dining out at a restaurant had no general duty to help someone experiencing a heart attack. The doctor could continue his or her meal and do nothing to help the heart attack victim because the law imposed no duty to act in this circumstance. If, however, the person having the heart attack was the doctor's child the law did 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.

Minnesota has altered this rule, but only slightly, with the Minnesota Good Samaritan Law. Under the Good Samaritan Law, any person at the scene of an emergency who knows that another person is exposed to or has suffered grave physical harm must, to the extent he or she can do so without risk to self or others, give reasonable assistance to the exposed person. The person who violates this law is guilty only of a petty misdemeanor. Under the Good Samaritan Law, any person who, without compensation or the expectation of compensation, renders emergency assistance, care, or advice at the scene of an emergency or during transit to an emergency medical care center, is insulated from liability for acts or omissions in rendering that care unless he or she acts in a willful, wanton, or reckless manner in providing the assistance, care, or advice.

Once a person has begun to help another person, the law does impose a continuing duty to help the injured person if ceasing aid would cause harm to the injured person. Thus, if a doctor at a restaurant rushes to help the victim of a heart attack, he or she may have a duty to continue to aid the patient.

An important area of medical malpractice law receiving increased attention in the courts deals with the circumstances under which a doctor owes a duty to persons other than the patient. In some situations, the doctor may owe a duty to persons other than those who undergo his or her treatment. For example, a pedestrian injured when an automobile driver suffers an epileptic seizure while driving might charge that the driver's doctor violated a duty to the general public by failing to properly diagnose 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. Under Minnesota law a psychologist, nurse, or chemical dependency worker licensed by the state must make reasonable efforts to communicate any serious specific threats to a potential victim if the practitioner has reason to believe his or her patient is capable of carrying out the threat.

In practice, a doctor is not considered a reasonably competent doctor if he or she does not keep abreast of current, commonly accepted methods of treatments or uses outmoded methods. However, if there are two or more commonly accepted methods of treatment, a doctor is free to use whichever he or she chooses, so 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 can sue for medical malpractice and would almost certainly recover damages from his or her doctor.

When examining the actions of a generalist, Minnesota 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 profession across the nation.

The "cause in fact" inquiry is usually answered with a "but for" or sine qua non test. A doctor's actions caused the patient's harm if, but for that action, the patient would not have been harmed. Sine qua non is a Latin expression meaning "without which not. " In other words, a doctor's actions caused harm if, without that action, the harm would not have occurred.

The proximate cause inquiry asks whether the professional ought to be held responsible for his or her actions even if those actions did in fact cause the harm. 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 tortious conduct was not proximate to the harm.

Sometimes this causation inquiry is answered rather easily -- a 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 through the malpractice of the other doctor. Different jurisdictions have created their own rules to deal with "multiple cause" injuries. In Minnesota the courts have dealt with this issue by holding that when there is more than one person whose conduct may have caused or contributed to an injury or death, proximate causation can be established by showing that a particular defendant's actions were a "substantial factor" in causing the plaintiff's injury.

Affirmative Defenses

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 and not an exact science, and that patients must assume all the risks of any surgical procedures. By signing a consent form, a person does not give up all his or her rights to sue the medical professional if things go wrong. First, such an agreement may not be valid if the doctor does not fully inform the patient of the risks associated with the particular surgery. 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 performed surgery that went beyond the consent of the patient or who failed to perform the surgery according to well-accepted medical standards. A patient may also sue a doctor (or a hospital) if a person other than the one named on the consent form performs the surgery.

The Future of Medical Malpractice Lawsuits

Defending Against Legal Malpractice Claims

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 Minnesotans 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 they consulted allowed the statute of limitations to run out on the claim because the lawyer believed that he or she had not 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 or not an attorney gives legal advice to a potential client during the initial consultation. In one case, the Minnesota Supreme Court upheld a lower court's award of damages to a woman who consulted with an attorney about her husband's medical malpractice claim. At the initial consultation, the lawyer told the woman that he thought she had no claim against her husband's physician and thus the lawyer would not take the case. Relying on the lawyer's opinion, the woman waited too long to file her lawsuit and the statute of limitations expired on her claim. When she sued the attorney for legal malpractice, she alleged that the advice she received was sufficient to establish an attorney-client relationship between herself and the lawyer. The court found that an attorney-client relationship existed, in part because the attorney had rendered legal advice under circumstances that made it reasonably foreseeable that if the advice were rendered negligently, the person receiving the advice could be injured by acting upon it.

The lesson for lawyers and prospective clients is that before leaving a lawyer's office, the individual and the lawyer should 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 careful about saying that the individual has no case, and take care to suggest, perhaps, 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.

Proving legal malpractice can be difficult because merely losing a case is not sufficient grounds to recover for malpractice. Like medicine, the law is not an exact science and many strategic legal decisions are made 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 tort law also applies here. An attorney's honest mistake will be judged against the course of action a reasonable and knowledgeable attorney would have taken.

All states set statutes of limitations on legal malpractice lawsuits. Some of the time limits begin when someone discovers that he or she has been harmed, while others begin when service by a professional is rendered. Thus, it is important to research this information as soon as one feels there may be a justifiable claim.

Causation is easiest to prove if a lawyer misses a deadline or gives advice that is clearly wrong. In these cases, the client can usually 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 had a different strategy been pursued, the outcome of the case would have been the same.

The Future of Legal Malpractice Lawsuits

A growing trend is for the court 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 upset 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.

As is true for doctors and lawyers, accountants can be sued for malpractice if they perform 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.

Accountant 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 Principles (GAAP) and Generally Accepted Auditing Standards (GAAS), are frequently used in accountant malpractice lawsuits to judge the actions of defendants. Although mere 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 are frequently used in connection with various kinds of securities offerings and are frequently submitted with annual reports or other periodic filings companies must make in order to comply with SEC requirements. If the financial statements are erroneous and lead to negative market impacts, then investors frequently 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 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.

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.

Lawsuits against an engineer or architect alleging professional malpractice hinge more on interpretation of contract than on the application of common law principals. Another factor further distinguishing professional malpractice lawsuits against engineers and architects from professional malpractice lawsuits against doctors and lawyers is that standard contracts used in the engineering and architecture professions often call for disputes to be submitted to binding arbitration. The ADR: Personal Injury Defense Law chapter describes the processes used in 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 professionals' 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 should never be integrated into an agreement as they can set impossibly high standards for any architect or engineer to meet.

Architect and Engineer Liability: Claims Against Design Professionals (Robert F. Cushman and 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).

M. T. Fabyanske and Robert J. Huber, Architect-Engineer Liability Under Minnesota Law (Cambridge Institute, Vienna, VA, 1988).