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Our lawyers are experienced in medical malpractice law and can help clients
determine whether or not malpractice has occurred where someone or something is
injured as a result of negligence or misconduct of individuals in the dental,
legal, and other professional fields.
One who undertakes to render services for another ordinarily has a legal duty to
exercise care in performing those services. The negligent breach of this duty
may give rise to an action sounding in tort. A person who provides professional
services has an additional duty to exercise that degree of care, skill, and
diligence commonly exercised by other members of his or her profession under
similar circumstances, unless the standard of care has been modified by statute.
Meaning of ''Professional''
The term ''profession'' is often used to refer to an occupation that requires
extensive academic training. The right to recover damages from a professional in
a tort action is not limited to cases that involve services provided by persons
who have extensive formal training, who hold advanced academic degrees, or who
must be licensed or certified by a governmental or private entity to perform the
services they offer. An action for professional liability may also be based on
the rendition of services by any person who purports to have special expertise
or who engages in a profession, trade, or business that requires specialized
care, skill, knowledge, or experience. Such actions have been pursued against
persons engaged in a wide range of occupations, including accountants,
architects, engineers, surveyors, attorneys, insurance agents, real estate
brokers, title abstractors, termite inspectors, escrow agents, title insurers,
stockbrokers, physicians, nurses, chiropractors, beauticians, dentists,
ambulance services, pharmacists, and veterinarians. Accordingly, the term
''professional,'' is used in the broad sense employed by the courts to describe
actions characterized as ''professional negligence'' actions, that is, with
reference to the negligence of persons who hold themselves out as experts, or
who engage in professions, businesses, and trades that require specialized care,
skill, knowledge, or experience, and in reference to the specialized services
they offer.
Application of General Principles
Most commonly, actions based on professional negligence are brought against
physicians, attorneys, and accountants. In contrast, most other types of
professional negligence actions have produced very little decisional law.
Consequently, the law applicable in these actions must frequently be determined
by reference to general principles of law established in other types of
professional negligence actions, including medical and legal. It has been
generally recognized that all professional negligence actions, including those
brought against physicians and attorneys, are ordinarily governed by the same
basic rules of law, except to the extent changed by statute.
In addition to liability in tort for negligent conduct, a professional may be
liable for the breach of a contract entered into with his or her client. A
professional who expressly contracts to accomplish or avoid a specific result
will, even in the absence of negligence, be liable for breach of contract if he
or she fails to comply. Moreover, the statute of frauds proscribes a cause of
action for breach of contract based on warranty of treatment by physicians,
osteopaths, chiropractors, podiatrists, or dentists, unless the agreement is in
writing and signed by the party to be charged.
Damages for injuries caused by negligent performance of a contractual duty may
be obtained through a tort action. Negligent conduct by a professional may thus
be characterized as a tort that arises from the breach of an implied contractual
promise to act with due care. In such event, the same conduct may be both a tort
and a breach of a contract between the professional and the client.
For example, in Safeco Title Ins. Co. v. Reynolds, a couple contracted with a
title insurance company to perform a title search on property that they intended
to purchase. During the title search, the company failed to discover the
existence of a duly recorded easement on seven parking spaces on the property.
The buyers alleged two grounds for relief: that the company breached its
contract in not advising the buyers of the encumbrances; and that the company
negligently performed the title search and failed to inform the buyers of the
recorded encumbrances. The jury returned a verdict that awarded the buyers twice
the amount of damages claimed for the breach of contract, and that found
negligence on the part of the title company, but denied damages to the buyers on
account of such negligence. On appeal by the title company, the Second District
agreed with the trial court that the buyers could sue on both the tort and the
contract claim in the same action.
However, the appellate court instructed the trial court to grant remitted on the
damages awarded for breach of contract, since the evidence in the case did not
prove that the buyers incurred that loss. The court further ordered that a new
trial be conducted with respect to the issues of negligence, since the jury's
verdict was untenable in the light of the evidence presented on that issue.
Professionals such as architects and engineers who commonly perform services on
the basis of a written contract may be able to limit the scope of their duties,
and hence the extent of their tort liability, by the terms of the contract. For
example, a contract may delineate specific areas of responsibility. In such
event, the alternative causes of action that a plaintiff may plead may be
restricted. The contract involved in a particular case must therefore be
examined for possible limitations on the duties owed by the professional to the
client.
Although a client may prove in the same suit that a professional breached both a
contractual and a tort duty of care owed pursuant to a single contract, the
client is nevertheless entitled to only one recovery of general damages and, if
pleaded, special damages. Thus, in Safeco, the buyers of the property who
recovered for loss of market value on a breach of contract theory would not be
allowed to recover the same type of damages on a negligence theory. They could,
however, be awarded lost profits as a result of the negligence of the title
insurance company, as long as the buyers specifically pleaded these damages and
sufficiently proved them to the tier of fact. Because the buyers did plead for
lost profits and presented a substantial amount of evidence in that regard, the
appellate court remanded for a new trial on the negligence claim. The court
further supported its decision on the fact that the jury had awarded double the
requested contract damages, and so had apparently intended that the buyers
recover more than the lost market value. In the opinion of the court, a jury of
reasonable persons who had heard the evidence in this case could not have
returned a verdict of zero damages.
Fraud
A professional may be held liable for the tort of fraud if the elements of that
cause of action are present. These elements are as follows:
the professional misrepresented a material fact;
the professional knew that it was false, did not know whether it was true or
false, or under the circumstances, should have known that it was false;
the professional made it with intent to induce the client to rely on its truth;
the client was injured when acting in justifiable reliance thereon.
The liability of professionals for fraud differs from that of other individuals
in that professionals owe a higher duty of care to their clients when making
representations of fact; that is, a professional is required to act with honesty
and fair dealing toward the client. Otherwise, the rules with regard to the
elements of the cause of action are similar to those that apply to any
defendant, and the court requires strict proof of the existence of the elements
of fraud to uphold this cause of action.
Intentional Infliction of Emotional Distress
A person who deliberately or recklessly inflicts severe emotional or mental
suffering on another by means of outrageous conduct will be liable in tort for
intentional infliction of emotional distress. ''Outrageous conduct'' is that
which is so extreme in degree that it is beyond the bounds of decency, is
regarded as atrocious, and is utterly intolerable in a civilized community.
For example, Florida recognizes a cause of action for insulting and abusive
language that results in mental distress if the conduct was sufficient to cause
severe emotional distress to a person of ordinary sensibilities. In an action
against a professional, the requisite outrageous conduct may be established by a
showing that the professional abused a position in which he or she held real or
apparent power to affect the interests of another or took advantage of a person
known to be unusually susceptible to emotional distress.
If conduct that is otherwise extreme and outrageous is in fact privileged under
the circumstances, the defendant will not be liable for the resultant
distressing effects. Privileged conduct includes the exercise of legal rights in
a permissible manner, even though such action will probably result in emotional
distress to another. Thus, under its policy, an insurance company had the right
to demand proof of ineligibility for Medicare and to withhold benefits if no
proof were provided. The company was privileged to assert its legal rights by
this procedure, regardless of the adverse, and in this case fatal, consequences
to the insured. An action is also privileged if it is mandated by law, such as
the requirement that a funeral home embalm a corpse within a certain time after
death.
Products Liability
Professional malpractice cases generally do not involve causes of action for
products liability, since the negligence involved concerns the provision of
services rather than products.
Since implied warranties do apply to removable or detectable defects in the
blood, tissue, or organs, it is logical to assume that the existence of such a
defect could be the subject of a products liability action. Nothing in the law
appears to vitiate the ability of a patient to sue for the negligence of a
health care provider in administering nondefective blood, tissue, or organs.
The elements of a cause of action for professional negligence are:
A duty on the part of the professional to use the degree of care that a
reasonably careful member of the profession would use under like circumstances.
A breach of that duty.
Actual loss or damage to the plaintiff.
A proximate causal connection between the professional's negligence and the
resulting injury.
Existence of Duty of Care
The existence of a legal duty on the part of a defendant to perform services in
accordance with professional standards is an essential element of a professional
negligence action. Ordinarily, an undertaking to provide professional services
gives rise to a legal duty to perform those services in compliance with a
particular standard of care. That is, unless a specific standard is mandated by
statute, a person who performs professional services must exercise that degree
of knowledge, skill, and care usually possessed and exercised by other members
of the profession under similar circumstances. The existence and scope of a
professional's duty of care depends on two essential factors:
whether the defendant expressly or impliedly agreed to render professional
services; and
whether the agreement or law under which a duty of care arises precludes the
imposition of or limits that duty.
Undertaking Duty to Render Professional Services
A duty to conform to the standard of care for professional services arises when
a person undertakes to render such services. Ordinarily, a professional's duty
of care arises from a contract to perform professional services.
For example, in a negligence action against an attorney, a plaintiff must prove
that he or she hired the attorney and that as a result of the employment the
attorney owed a duty of care in rendering the professional services to the
plaintiff. The contract may be either oral or written; and even if it is
unenforceable under the statute of frauds, the contract may be used as proof of
a professional's duty of care in a tort action for negligence, since such an
action does not seek enforcement of the contract. A contract is not essential to
the creation of a duty of care by a professional.
That is, a duty of care can arise with regard to a professional who voluntarily
or gratuitously performs or agrees to perform a professional service. A duty of
care in the voluntary rendition of professional services may be implied by law,
such as when health care providers treat a person in a hospital emergency room.
In such event, the attending physicians and other medical assistants are subject
to a legal duty of care while tending the patient, regardless of whether an
express agreement is made between the providers and the patient. That duty of
care is limited by statute.
Limitations on Scope of Duty
A professional's duty of care is circumscribed by the contract that creates the
duty, by the statute that imposes it, and by the range of the expertise and
services that, by custom and practice in the business community, are ordinarily
expected of persons who provide similar professional services. In other words,
it constitutes an obligation to exercise care in performing only those
particular services or functions that the professional has agreed to perform or
is required to render and that the client reasonably anticipates would be
furnished by a person who undertakes to provide similar professional services.
If the contract for professional services is oral, then the scope of the duties
owed under the agreement may also be determined by reference to the ordinary
custom and practice of the profession or business involved. A professional's
duty generally does not extend to services for which there is no agreement or
undertaking or that are not within the existing agreement or undertaking. The
professional owes no duty of care with respect to those services, since no duty
has been created or imposed. An exception to this general rule arises when an
agreement between a professional and a client or patient is held to create a
duty of care with respect to a third party.
Duty to Third Persons Existence of Duty
Under certain circumstances, Florida courts have held that professionals owe a
duty of care to third parties who are neither clients nor patients but are
nevertheless affected by the conduct of the professional. Generally, the
determination depends on whether a contract between the professional and client
or patient has created a duty of care with respect to the third party. This test
is most easily met when the third party is a third-party beneficiary of, or is
in privity with a party to, the contract. It is more difficult to apply the test
when the third party is found to fall into neither category.
Beneficiaries and Parties in Privity
With regard to a third party who is a beneficiary of, or who is in privity with
a party to, a contract for professional services, the professional owes the same
duty to the third party as to the client. A professional who has a duty to
perform the terms of a contract for a client thus owes that duty to the third
person as well. If the professional is negligent and his or her conduct results
in an injury to the third person, the professional may be liable. The scope of
the duty of care is imposed and delineated by the specific terms of the
applicable contract. In such cases, a third person may sue alternatively in tort
and for breach of contract in the same action.
Other Third Parties Performance of Contractual Obligation
When a professional enters into a contract, he or she may owe a duty to perform
the contract with due care toward the interests of another person who is neither
a party to, nor in privity with, nor a third-party beneficiary of the contract.
The professional who breaches that duty may be liable for the resulting damages.
The duty does not constitute a contractual promise by the professional. Rather,
it is an obligation to use reasonable care in completing the terms of a contract
so as to avoid causing foreseeable injuries to persons, including the plaintiff,
who are not parties to the contract. However, if there is no contractual duty,
and if no other duty is mandated by law, the professional's conduct does not
give rise to an actionable tort.
Factors in Determination of Existence of Duty
In determining whether a duty of care is owed to a third party who is neither a
party to, nor a third-party beneficiary of, nor a person in privity with, a
contract with a professional, the courts have balanced the following
considerations:
The extent to which the transaction was intended to affect the plaintiff.
The forseeability of harm to the plaintiff.
The degree of certainty that the plaintiff suffered the injury.
The closeness of the connection between the defendant's conduct and the injury.
The moral blame attached to the defendant's conduct.
The policy of preventing future harm. These factors are not exclusive; a court
may examine other relevant factors that arise in a particular case.
Intent to Affect Third Party
The courts appear to regard an intent to affect a third party as one of the most
important considerations in determining whether a professional is liable in tort
to that party. A duty of care is typically found to exist in favor of a third
party when a client has hired the professional for the benefit of that party.
Foreseeability
Another significant consideration in determining whether a professional owes a
duty of care to a third party is the foreseeability of the injury and the
closeness of the connection between the conduct of the professional and the
third party's injury. If a professional has rendered services that will benefit
or affect a third party, injury is considered forseeable and there is a direct
and immediate connection between the professional's conduct and the injury.
Under such circumstances, and particularly when there was an intent to affect
that person, the courts have found that a professional owes a duty of care to
the third party.
In a case involving accountant malpractice, the Florida Supreme Court adopted
the Restatement (Second) of Torts, Section 552, which extends the liability of a
supplier of information to persons who the supplier actually knows or should
know will rely on the information. The Fifth District extended the application
of this rule to real estate appraisers when it held that a real estate appraiser
may be liable for negligence in the preparation of an appraisal to third parties
with whom no contractual privity exists. In this case, although the appraiser
was hired by a real estate developer, the appraiser had actual knowledge that a
bank would be relying on the appraisal in determining whether to extend credit
to the developer. Thus, the appraiser could be held liable to the bank for
negligent preparation of the appraisal.
Consequences to Professional-Client Relationship
Another factor examined by courts in determining the responsibility of a
professional to a third party is the effect of imposing liability. More
specifically, the courts have considered whether the imposition of liability
will adversely affect the relationship between the professional and the client,
and will thus diminish the quality of services rendered to the client. This
factor has frequently been determinative of the extent of the professional's
liability.
The effect on a professional-client relationship is often a consideration when a
potential conflict exists between the interests of a client and those of a third
party. In this event, courts have recognized that if a professional were held to
a duty of care with respect to the interests of the third party as well as the
client, the professional would risk possible liability to both parties. As a
result, the professional might be deterred from fully pursuing the client's
interests to the extent that the professional's actions would harm the third
party. The quality of the professional services rendered to the client would
thus be diluted. In such cases, the courts have generally refused to acknowledge
the existence of a duty of care. For example, an attorney who represents a
seller in a real estate transaction has no duty to protect the interests of the
buyer.
On the other hand, if the imposition of a duty of care in favor of a third party
will not require the professional to do anything more than the services already
owed to the client, a duty of care may be extended to the third party. Thus,
when an architect expressly contracts with a property owner to design a
construction project, the architect owes a duty to use due care in preparing the
plans so as to avoid foreseeable harm to the owner. The same duty is owed also
to the general contractor, who must follow the architect's specifications and
who may incur damages if the plans are negligently drafted.
Prevention of Future Harm
In determining whether to impose liability on a professional for damages to a
third party, the courts have considered the general policy that their decisions
should prevent harm to parties who, in the future, will be involved in similar
situations. This policy is of particular significance when only the third party,
as opposed to the client, risks injury because of the negligent performance of
the professional services. If refusal to extend a duty of care would, as a
practical matter, immunize the professional from liability for negligence and
would frustrate the policy of preventing future harm, a court will generally
impose liability.
Duties of Particular Professionals Architects
Persons who represent themselves to the public as qualified to render
architectural services are subject to the duty to conform to the standards of
their profession. This duty includes the obligation to possess and exercise the
knowledge and skill required for the preparation of design plans and
specifications. Similarly, an architect who has expressly undertaken the
responsibility to supervise the actual construction of a project must do so in
accordance with the recognized standards of his or her profession. These duties
may be owed not only to the party who hired the architect, but also to third
parties who may foreseeably be affected by the conduct of the architect, such as
contractors who submit bids in reliance on the architect's plans and
specifications, and subsequent purchasers of structures designed by the
architect. However, an architect is not liable when a third party is injured due
to a patent defect in an improvement to real property that has been accepted by
the property owner.
An architect who furnishes services as an employee or member of a partnership is
liable for negligence, misconduct, or wrongful acts committed by the
partnership's agents, employees, officers, or partners while acting in a
professional capacity, and an architect is personally responsible for the
performance of services, regardless of whether they are provided through a
corporation or partnership.
Engineers It is well established in Florida that persons who perform and who
offer to perform engineering services are considered professionals, and must
therefore conform to the acceptable standards of care for their profession. This
duty extends to such services as the performance of tests to determine the
quality and stability of land, the evaluation or inspection of construction
projects, and the supervision or performance of construction work. An engineer
may also owe a duty to third parties who are foreseeably affected by the
engineer's actions, such as contractors who rely on a report prepared by the
engineer, and lenders who have a security interest in the property.
However, an engineer is not liable when a third party is injured due to a patent
defect in an improvement to real property that has been accepted by the property
owner. An engineer who performs as an employee or member of a partnership is
subject to liability for negligence, misconduct, or wrongful acts committed by
agents, employees, or partners while acting in a professional capacity.
Moreover, an engineer who performs through a partnership or corporation is not
relieved of personal liability with respect to the provision of professional
services.
Insurance Agents and Adjusters
As professionals, persons who represent themselves as insurance agents or
adjusters are subject to a duty to adhere to the standard of care recognized by
others in their profession. When acting in a capacity as an agent for an insured
or prospective insured, the agent's duty of care encompasses obligations to
exercise care and diligence in obtaining requested insurance coverage, in
obtaining or maintaining the coverage in the amounts requested, and in advising
the insured or prospective insured of gaps or potential gaps in coverage. If a
client has requested that an insurance policy designate a third party as the
named insured or additional named insured, or if the agent undertakes to ensure
that the client complies with an agreement requiring the designation of a third
party, the duty of care that the agent owes the client will also extend to the
third party.
Real Estate Brokers
A person who offers or undertakes as a real estate broker to represent another
in a property transaction must have and must exercise the knowledge, skill, and
diligence ordinarily possessed and used by other professional real estate
brokers. Depending on the services that a broker has agreed to perform for a
client, the broker's duty of care will extend to the marketing, financing, and
contractual aspects of a real estate transaction. It has been held, for example,
that actionable negligence arises when real estate brokers have failed to
inform the client of all facts known to the broker that are material to the
transaction, such as the buyer's financial inability to complete the purchase;
convey the actual intentions of the client in preparing a real estate sales
contract, property listing agreement, or other documents related to the
transaction; and
ascertain the true terms and conditions under which the client has agreed to
list the property.
Although no cases have dealt with the question whether a real estate broker
would be liable to a third party who would foreseeably be injured if the broker
rendered services negligently, the courts would presumably analogize to the
rulings in cases that concern other types of professions. Actions against real
estate brokers are more commonly brought on the grounds of breach of fiduciary
duty than on charges of negligence in the rendition of professional services.
Pharmacists
Under the common law, a pharmacist's sole duty is to accurately and properly
fill all lawful prescriptions presented. The Florida Supreme Court has rejected
a breach of warranty action for failure to warn of the adverse side effects of a
prescription medicine. The Court held that a druggist warrants only that the
prescription is accurate, has been filled with due care, has not been infected
with some adulterating foreign substance, and has been compounded using the
proper method. Similarly, a pharmacist has no common law duty to warn of a
drug's addictive potential, or to warn a customer or the customer's physician of
potential adverse drug interactions a combination of prescriptions might cause.
Furthermore, the Florida Pharmacy Act, which provides a regulatory scheme for
pharmacists, does not create a duty and private cause of action that broadens a
pharmacist's common law duty.
Standard for Professional Negligence
A professional, or any person who undertakes to provide services for which a
high degree of skill is necessary, has a duty to exercise two standards of care:
the reasonable standard required of an ordinary person; and a minimum standard
of superior knowledge and ability. The reason for imposing the second standard
is that a person who claims to have knowledge, skill, or intellect superior to
that of an ordinary person must act consistently with that superior ability.
Therefore, when a person represents to the public that he or she has a special
knowledge or skill required to provide a professional service, that person is
obligated to exercise a degree of skill greater than the degree expected of an
ordinary person. The special standard imposed by common law requires a
professional to exercise that degree of care, skill, and diligence commonly
exercised by other members of his or her profession under similar conditions, in
similar localities, and with consideration of the current state of knowledge
within the profession at the time the service is rendered. This standard may be
modified by statute for certain professionals, such as physicians. The special
standard of care requires any person who claims, through advertising,
soliciting, or otherwise, to be a professional to possess and use the amount of
learning, skill, and experience typically possessed by others in the same
profession. The person must apply the superior skill and knowledge with
reasonable and ordinary care and diligence and must exert his or her best
judgment as to the means of performing the requested service.
In addition, the methods employed must be recognized as necessary and as
customarily followed in the circumstances involved. That is, they must accord
with the standard practices of other persons who have similar training and
experience to perform similar services in the same, or in a similar, community.
Although a professional is held to a special degree of care, that standard does
not function as a warranty that the results of the professional's services will
be accurate, satisfactory, or beneficial. In the absence of negligence,
intentional wrongdoing, or an express contractual warranty, a professional is
not liable merely because the service provided did not attain the results that
the client desired, even if nothing was accomplished or if the results obtained
were erroneous, unsatisfactory, or disadvantageous to the client.
A person who retains a professional purchases services rather than insurance.
The standard of care does not require the professional to accomplish a
particular result. In the absence of a statute that establishes a specific
standard, the determination of the standard that is applicable with regard to a
particular professional is generally regarded as a question of fact. The
standard, and the breach thereof, must therefore generally be established by the
testimony of expert witnesses, unless it is apparent to any person from common
experience. That is, to prevail on a claim of negligence by a professional, a
plaintiff should be prepared to present expert testimony related to the skill
and conduct usually employed by similar professionals in the community.
Negligent breach of the standard cannot be presumed merely because the
professional services were unsuccessful or unsatisfactory.
Purported or Presumed Expertise
Nor have Florida courts addressed the question whether a person who engages in a
professional service may affirmatively disclaim possession of the special skills
or knowledge employed by other members of that profession. The Restatement
(Second) of Torts would permit a person to make such a disclaimer so as to avoid
having to conform to the prevailing standards of care for a particular
profession. Under this rule, if a person who offers to render a professional
service clearly informs a client or patient, whether orally or in writing, of
the lack of the necessary superior training and knowledge, the person will be
held only to the standard of care for an ordinary individual. Arguably, no
disclaimer should be allowed when a statutory scheme, such as a licensing law,
prohibits a person who does not meet minimum standards of training, skill,
experience, or knowledge from performing certain professional services.
Otherwise, an unlicensed or unqualified defendant could render a professional
service without being held to the standard of care for the profession by simply
disaffirming possession of the skill or knowledge to do so. In that event, not
only would untrained persons be encouraged to disregard the statutes that govern
particular professions, but injured clients or patients would have to bear the
losses against which they were to be protected by the legislation.
Thus, if a person must comply with certain minimum statutory qualifications to
enjoy the right to perform a professional service, that person should be liable
for failure to adhere to the degree of care required of other members of that
same profession, regardless of whether the person has in fact disclaimed
possession of the relevant skill, training, and knowledge. Certain exceptions
may be made in situations in which a person would otherwise be granted immunity,
such as when the conduct undertaken is required because of an emergency
situation.
Relevance of Locality
In determining the standard of care applicable to a person who renders
professional services, a number of Florida courts have applied a locality test.
That is, the standard of care is that which is prevalent within the profession
in the same or a similar locality.
Florida courts have not expressly defined the phrase ''similar locality.'' Under
the Restatement (Second) of Torts, a similar locality is one that is comparable
with respect to geographical location, size, and general character of the
community. The purpose of considering the degree of care that is acceptable not
only in the same community but also in a similar locality is to protect against
the application of an inferior standard. Thus, if services furnished in a
particular town are inferior to those acceptable in any other location, the
prevailing standard of care should not be determined as that employed by the
professionals in that town. The standard is instead that recognized as proper by
professionals who practice in similar communities.
In deciding whether an expert witness is competent, the courts appear to have
extended the locality test beyond the Restatement definition of similar
locality. In Marks v. Mandel, the evidence at trial indicated that hospitals in
Dade County adhered to the same standard for procedures in an emergency room as
that considered acceptable nationally. Therefore, the court permitted a doctor
who was familiar with the standard of care in the United States to testify to
the degree of care required in Dade County, implying that any area in the United
States where the national standard was followed was a similar locality in this
case.
The locality test cannot be used to exclude the testimony of a witness who is
unfamiliar with practices in the same or a similar locality when no other
evidence of the standard of care is available.
With regard to standards of care for attorneys, the courts have differed in
their application of the locality test. The federal court in Gleason, for
example, considered a countywide limitation in determining the appropriate
degree of care. In another case, State v. Oxford, cited for support by Gleason,
an attorney faced disciplinary charges for filing pleadings for both petitioners
and respondents in 39 separate divorce suits. The Florida Supreme Court condoned
the attorney's conduct because such practices were common in the judicial
district where the attorney worked, although they could be considered unethical
in other locales.
However, the disciplinary rules that govern legal ethics are not intended as a
basis for the imposition of civil liability, and thus Oxford is questionable
support for imposition of the locality rule in a legal malpractice suit. The
precedential value of the decision in Gleason is therefore uncertain, especially
since more recent Florida state court cases have omitted the locality test in
describing the applicable standard of care.
Thus, in Dillard Smith Const. Co. v. Greene, the court merely refers to a degree
of care acceptable to attorneys who are ''similarly situated.'' The locality
test has been codified with respect to health care providers who are
nonspecialists. A health care provider is within this classification if he or
she is not certified as a specialist by an American medical board, is not
trained and experienced in a medical specialty, or is not represented to the
public as a specialist. By statute, nonspecialists must exercise the degree of
care, skill, and treatment that, under the circumstances, is recognized as
acceptable and appropriate by reasonably prudent health care providers who are
licensed by an appropriate state agency, are trained and experienced in the same
discipline or school of practice, and are practicing in the same or similar
medical community. The locality test is eliminated for health care providers who
are specialists. Few cases that involve other types of professional services
have incorporated the locality test into the definition of the applicable
standard of care.
The locality test was employed for the purpose of determining the standard of
care required of an architect. The Restatement (Second) of Torts suggests that
the geographical variations in professional skill and knowledge that prompted
the adoption of the locality test in cases that involve physicians and surgeons
are not as significant with regard to other professionals and that,
consequently, allowance has seldom been made for them. As a practical matter,
the addition of the locality test to the prevailing standard of care results in
a rule that allows for varying degrees of skill depending on where a
professional renders services. It may also render inadmissible the testimony of
an expert witness who has extensive professional knowledge and experience but
who does not have specific knowledge of the customary practices in a particular
geographic area.
Furthermore, in the light of the increase in the availability of modern forms of
communication, the justification for a test that permits the use of a different
degree of skill or knowledge for professionals who are practicing in different
areas of a state may be subject to challenge.
On the other hand, the locality test remains relevant if the persons who provide
particular professional services in a certain geographic location do not have
access to facilities, equipment, or personnel otherwise available in other
places. In such event, the degree of care expected of the professional should be
measured by that which is acceptable to a reasonably prudent professional who
works within the same or a similar locale.
Effect of Specialization
By statute, a greater degree of care is imposed on health care providers who
have specialized in a medical field. A specialist is one who is certified as
such by an American medical board, is trained and experienced in a medical
specialty, or is represented to the public as a specialist. When a health care
provider specializes, he or she is expected to use the additional knowledge
gained; that is, the health care provider must employ a degree of care, skill,
and treatment that, in the surrounding circumstances, is recognized as
acceptable and appropriate by other reasonably prudent health care providers who
are trained, experienced, and certified as specialists in the same medical
field.
Although no decisions appear to have expressly applied this rule to other
professions, the general rule as set forth in the Restatement (Second) of Torts
is that a person who furnishes a professional service must exercise a degree of
care commensurate with his or her level of skill, training, or knowledge. A
person who represents that he or she has greater skill or knowledge than is
ordinarily possessed by other members of the same profession is bound to use
such additional skill or knowledge in providing a service. Thus, persons who are
specialists, or who hold themselves out to the public as specialists, may be
required to have and to exercise the knowledge and skill commonly possessed and
used by other specialists in the same field.
Breach of Fiduciary Duty
Professionals may be held accountable in negligence for breach of a fiduciary
duty. This standard of care is also higher than that for ordinary negligence; it
requires the professional to act with honesty, candor, and fairness in dealing
with clients.
The general rule is that a professional who stands in a fiduciary relationship
to a client is under a duty to make a full disclosure of all material facts to
that person. Professionals who have been held to be fiduciaries include real
estate brokers, attorneys, and physicians.
Defenses Based on Contractual Provisions Limitations on Services Undertaken
Because the extent of a professional's duty of care depends on the nature and
scope of the professional undertaking, the provisions of a contract between a
professional and a client that specify or particularize the tasks or functions
the professional is to perform will define and limit the duty of care owed by
the professional.
Exculpatory Clauses
In general, an exculpatory clause in a contract, which shifts the risk of
negligence from the actor to the victim, is enforceable if it is clear,
unequivocal, and not contrary to public policy. Thus, an exculpatory clause that
limited a bank's liability to a customer for the loss of contents of a safe
deposit box, except where the loss was occasioned by the bank's gross
negligence, fraud, or bad faith, was valid. The clause was clear and unequivocal
in its terms, and it did not affront public policy by violating any ordinances
or statutes, or by permitting the bank to abdicate its responsibilities.
On the other hand, a clause that limited an exterminating company's liability to
the expenses of retreatment was unenforceable where other provisions could
reasonably have led the homeowner to anticipate that the company had warranted
its work to cover new infestations and repair costs. In this case, the clause
was ambiguous, deceptive, and inconsistent with the rest of the contract. If
otherwise valid, an exculpatory clause is enforceable even if it limits
liability to a specified amount or completely exempts the actor from liability.
However, the courts have refused to enforce an exculpatory clause that exempts a
defendant from liability for intentional torts.
Moreover, if the relative bargaining powers of the contracting parties are not
equal and the exculpatory clause seeks to exempt from liability the party who
occupies the superior bargaining position, enforcement of the clause may be
denied. Despite the potential difference in bargaining powers between the
parties, exculpatory clauses have been upheld in professional liability cases.
For example, the court upheld a clause exonerating an architect from liability
for the acts or omissions of the contractor or subcontractors in carrying out
the contract. The clause in question clearly absolved the architect from
responsibility for the construction methods or safety procedures of the
builders, although it did promise to endeavor to guard the owner from defective
work by the contractor.
The court stated however, that had the architect ignored his contractual duty to
make periodic visits to the site, he would have been liable notwithstanding the
exculpatory clause. Thus the enforceability of such a clause depended on the
defendant's compliance with other provisions and responsibilities of the
contract.
Arbitration Provisions
Under the Florida Arbitration Code, two or more parties, including professionals
and their patients or clients, may agree in writing to submit to arbitration any
existing or future controversy between them, and such agreement to arbitrate
will be enforceable and irrevocable. Arbitration agreements are generally
favored in the law. However, when the arbitration of an issue conflicts with a
policy reflected in other Florida statutes, the arbitration provision will not
be given effect.
Thus, when an agreement between a Florida customer and a foreign corporate
stockbroker doing business in Florida specifically stipulated that the laws of
New York should govern the enforcement of the agreement, the arbitration
provisions were unenforceable in Florida. If a professional and his or her
client or patient have agreed to a valid provision that requires the arbitration
of any negligence claim against the professional, the defendant in a malpractice
action may compel the determination of the claim by means of an arbitration
proceeding, obtain a stay of any action commenced by the client and secure the
entry of judgment in accordance with the determination made in the arbitration
proceeding. A professional who proceeds to defend against a claim in an action
commenced by the client may waive the contractual right to enforce an agreement
requiring arbitration if arbitration is not requested within a reasonable time.
However, despite a waiver of a contractual right to arbitrate, a court in any
civil action may order arbitration on the request of any party, and
court-ordered arbitration procedures are also available in medical negligence
actions.
Professional and Ordinary Standards Distinguished
A person who renders professional services may be held to the ''reasonable
person'' standard, instead of the standard for professional negligence, when
providing services that do not require the skill and knowledge of a professional
or that are beyond the scope of the professional-client relationship. In such
event, a professional has a duty to employ that degree of care that would
normally be exercised under similar circumstances by a reasonable person to
prevent injury to others. The reasonable person standard is distinguishable in
that it is based on a degree of care acknowledged as appropriate by any
individual of ordinary and prudent judgment, whereas the professional standard
is determined in accordance with a degree of care recognized by the members of a
limited group who possess superior knowledge, skills, or experience compared
with ordinary persons. The distinctions between the two standards is also
apparent in a case in which a physician is hired by an insurance company to
examine the insured. In that event, the doctor owes a professional standard of
care to the insurance company, as the client. No professional-client
relationship has arisen, however, between the physician and the insured.
Therefore, the doctor owes the insured merely a duty to exercise ordinary due
care not to injure the insured during the examination.
Breach of Duty In General
A professional's breach of a duty of care is an essential element of a
professional negligence case. The plaintiff must affirmatively prove that the
professional did not exercise the appropriate degree of care required.
Negligence cannot be inferred from the mere fact that the result of a
professional service is unsatisfactory or disadvantageous to the plaintiff,
since a professional is not considered to guarantee a specific result. If a
professional furnishes services that fully comport with the intentions or
expectations of the client, the professional is not liable for negligent breach
of duty.
As a general rule, the testimony of expert witnesses is required to establish
the degree of care required of a professional and the breach thereof. The reason
for this rule is that the standard of care prevalent in a particular profession
is considered to be a matter beyond the knowledge and experience of a lay
witness. In one case, a court held that expert testimony was needed on the issue
of the trial strategies of an attorney.
Otherwise, the trier of fact could only speculate about whether the attorney was
negligent in intentionally refusing to call a witness who, in the attorney's
opinion, could have given testimony that would have damaged the client's case.
The plaintiff in that case failed to establish that the attorney breached a
duty. Because an expert witness must advise as to the degree of care acceptable
to members of the same profession as the defendant, the expert must have
training, experience, or skill in that profession. For example, a pathologist is
unqualified to testify to the standard of care for a gynecologist who is
treating potential breast cancer.
An exception to the general rule requiring an expert witness to demonstrate
breach of a standard of care for a professional has been recognized. No expert
testimony is required when the alleged negligent conduct is a matter of common
knowledge within the understanding of a lay person. Expert testimony thus was
not necessary to establish that a defendant breached the applicable standard of
care when hospital personnel failed to check the components of a prosthesis
before inserting it in a patient's knee, when hospital staff failed to supervise
closely the recovery of a disoriented, feverish patient under sedation with a
hip cast, when a surgeon left an instrument in a patient or amputated the wrong
limb, or when an attorney instructed his client not to answer interrogatories,
with the result that the case was dismissed.
Violation of Statute, Regulation, or Ordinance
The violation of a statute, regulation, or ordinance that establishes a duty of
care to protect a particular class of persons from a particular injury or type
of injury is negligence per se; that is, proof of the violation demonstrates a
negligent breach of the duty of care imposed. However, the fact that a statute,
regulation, or ordinance has been violated does not necessarily mean that there
is actionable negligence. The plaintiff must also prove that the defendant owed
a duty to the plaintiff pursuant to the statute, the breach of which proximately
caused the injury. That is, the plaintiff must demonstrate that he or she is of
the class the statute was designed to protect, that the injury was one that the
statute was designed to prevent, and that violation of the statute was a
proximate cause of the injury. The negligence per se rule applies in actions for
the wrongful conduct of a professional. It has been invoked in cases that
involve violations of statutes that regulate pest control companies and
violations of provisions of a building code. The violation of a statute,
regulation, or ordinance that does not protect a particular class of persons is
considered merely prima facie evidence of a breach of duty. This evidence is
rebuttable by the defendant. The only cases that have dealt with such violations
concern traffic regulations in situations that do not include the negligent
conduct of a professional.
However, since the negligence per se rule has been applied to determine the
breach of a statutory duty by a professional, courts will also presumably employ
the prima facie rule to an appropriate violation. Administrative Determination
of Misconduct An administrative determination of a professional's misconduct may
not be used as conclusive proof of the facts underlying that determination in a
subsequent professional negligence action based on the same facts. This is
because Florida requires mutuality of parties in order to apply the doctrine of
collateral estoppel.
Furthermore, the plaintiff in the malpractice action cannot be considered to be
in privity with the administrative department when it pursues the claim against
the professional, because no privity exists unless the person claiming it has an
interest in the proceeding such that he or she will be bound by the outcome as
if he or she were a party.
Proximate Causation Direct Evidence
As in any action for negligence, the plaintiff in a malpractice action against a
professional must prove that the damages sought were proximately caused by the
professional's breach of duty. The failure to prove proximate cause is a
complete defense to an action for malpractice. Florida courts follow the ''more
likely than not'' standard of causation in negligence cases, which requires that
the plaintiff prove that the defendant's negligence was the probable cause of
the plaintiff's injuries. In the medical malpractice case of Gooding v.
University Hosp. Bldg., Inc., the patient had only a limited likelihood of
survival before the alleged negligent treatment. The plaintiff was therefore
unable to prove that the health care provider's alleged negligent treatment more
likely than not caused the patient's injuries, since the patient could have died
from the physical condition regardless of the treatment rendered. The patient's
death was not proximately caused by malpractice.
Similarly, the case of Hatcher v. Roberts, concerned alleged legal malpractice
by an attorney who failed to present an affirmative defense in a real property
foreclosure proceeding. The trial court granted summary judgment for the
attorney, and the appellate court affirmed on the ground that the client had not
demonstrated that the defense would probably have prevented the foreclosure.
Rather, the appellate court found that the affirmative defense was insufficient
as a matter of law and could not have been upheld. The failure of the attorney
to pursue the defense was not a proximate cause of the loss incurred by the
client. In cases of professional liability, an intervening act or omission of a
third person, such as the negligent conduct of another professional, is
frequently the immediate cause of a plaintiff's injuries. In such event, the
initial tortfeasor is liable to the plaintiff if the subsequent act by the third
party was reasonably foreseeable. That liability extends not only to the injury
caused by the plaintiff but also to the damages caused by the third party, who
is jointly and severally liable therefor.
However, if the subsequent negligence constitutes an independent, intervening
cause of the injury because it was not reasonably forseeable to the initial
tortfeasor, then no liability will attach to the conduct of the initial
tortfeasor.
Res Ipsa Loquitur
An accident or injury is presumed to have been caused by negligence on the part
of a defendant if the plaintiff can establish that the accident or injury is of
a kind that does not ordinarily occur in the absence of someone's negligence and
that the defendant is probably the person responsible. The courts have
formulated requirements for determining whether the doctrine of res ipsa
loquitur applies in a particular case. The general conditions for its
application exist if
the injury ordinarily does not occur in the absence of someone's negligence; and
the instrumentality that caused the plaintiff's injury was under the exclusive
control of the defendant.
When direct proof of the cause of the injury is available, the doctrine will not
apply; however, the existence of direct evidence of the defendant's negligence
does not automatically deprive the plaintiff of the res ipsa inference.
Once the conditions for applying res ipsa loquitur have been met, the doctrine
permits, but does not compel, an inference of negligence. The inference may be
rebutted by the defendant with evidence that the accident resulted from a cause
other than the defendant's negligence or that the defendant exercised due care
in all possible respects in which he or she might have been negligent. The use
of the res ipsa loquitur doctrine has frequently been upheld in cases involving
the negligence of physicians or dentists.
Although there appear to be no judicial decisions that apply the doctrine in
cases of negligence by other professionals, there is no reason to limit its
application to cases that involve health care providers, as long as the
conditions for application of the doctrine are met.
Economic and Noneconomic Damages
To establish a cause of action for professional negligence, a plaintiff must
allege and prove that he or she has suffered a legally cognizable injury or
damage as a result of the professional's breach of duty. A plaintiff is entitled
to recover damages for all losses proximately caused by the professional's
negligence.
Damages available include those for financial and economic losses, such as lost
income, medical and funeral expenses, loss of appraised fair market value of
real property, and the costs of repairs. In addition, a plaintiff may receive an
award for noneconomic injuries, such as pain and suffering, inconvenience,
physical impairment, and mental anguish Nominal damages, speculative harm, or
the threat of future injury will not support an action against a professional
for negligence. That is, the existence of damages must be proved with reasonable
certainty. However, calculation of the amount need only be approximate, and thus
damages that cannot be computed with exactitude, such as lost future income, may
nevertheless be awarded as long as they can be reasonably estimated. The
economic loss rule does not bar a claim for professional malpractice when no
personal injury or property damage resulted from the alleged negligence.
Punitive Damages
Under prior case law, punitive damages based on the malpractice of a
professional who has been more than grossly negligent may be recovered. However,
for cases arising after October 1, 1999, the standard for imposition of punitive
damages has been established by statute. Under the law, a defendant in any civil
action may be held liable for punitive damages if the trier of fact finds, based
on clear and convincing evidence, that the defendant was personally guilty of
intentional misconduct or gross negligence. ''Intentional misconduct means that
the defendant had actual knowledge of the wrongfulness of the conduct and the
high probability that injury or damage to the claimant would result, and despite
that knowledge, intentionally pursued that course of conduct, resulting in
injury or damage. ''Gross negligence'' means that the defendant's conduct was so
reckless or wanting in care that it constituted a conscious disregard or
indifference to the life, safety, or rights of persons exposed to the conduct.
The amount of punitive damages that may be awarded is also regulated by statute.
Costs and Attorneys' Fees
The successful party in a lawsuit for injury based on a professional's
negligence may recover the costs incurred in that suit. Such costs include the
reasonable expenses charged to the successful party for the services of a court
reporter, the appearance of expert and lay witness, and the taking of a
deposition of a party or witness if the entire deposition is read into evidence
at trial. Attorneys' fees are only recoverable if permitted by contract or
statute. As in any civil action in Florida, attorneys' fees may be recovered in
an action for the negligence of a professional, if there has been a statutory
offer of, or demand for, judgment. Under the statute, the defendant may make an
offer of judgment to the plaintiff. If the plaintiff does not accept the offer
within 30 days, the defendant is entitled to recover reasonable costs and
attorneys' fees from the date of filing of the offer if either the judgment is
one of no liability or the judgment obtained by the plaintiff is at least 25
percent less than the offer.
Similarly, the plaintiff may make a demand for judgment on the defendant. If the
defendant does not accept the demand within 30 days and the plaintiff recovers a
judgment in an amount at least 25 percent greater than the offer, the plaintiff
is entitled to recover reasonable costs and attorneys' fees incurred from the
date of the filing of the demand. Pursuant to statute, the court may, in its
discretion, determine that an offer was not made in good faith. In such a case,
the court may disallow an award of costs and attorneys' fees.
Statute of Limitations
With several exceptions, an action for professional liability must be commenced
within two years from the time the cause of action is discovered or, with the
exercise of due diligence, should have been discovered. Actions for medical
malpractice must be brought within that same time period, but in no event later
than four years from the date of the incident from which the cause of action
accrued. (However, this four-year period does not bar an action brought on
behalf of a minor on or before the child's eighth birthday. ) The limitation
periods for these actions do not apply to suits instituted by persons who are
not in privity of contract with the professional. Such actions must be brought
within four years. For purposes of the professional malpractice statute of
limitations, a ''profession'' is a vocation requiring at least a four-year
college degree before licensing is possible in Florida. A four-year degree is
required. A vocation is not a profession if there is any alternative method of
admission that omits a required four-year undergraduate degree or a graduate
degree. In addition, a vocation is not a profession if a state license is not
required at all. There is no requirement that the four-year degree be in a field
of study specifically related to the vocation in question. In addition, a
vocation is a profession if any graduate degree is required as a condition of
licensure, without regard to the nature of the undergraduate degree. The only
relevant criteria for determining if a vocation is a profession are those
applicable to first-time applicants who have never been licensed in another
jurisdiction. The fact that some members of the vocation may have been admitted
at a time when college degrees were not required is irrelevant, and those prior
admittees are not to be considered nonprofessionals. If a professional
malpractice action is founded on the design, planning, or construction of an
improvement to real property, the applicable statute of limitations is four
years. In such a case, the time begins to run from the latest of the date of
possession by the owner, the date a certificate of occupancy is issued, or the
date the contract between the client and the professional is completed or
abandoned. However, if the cause of action involves a latent defect, the period
runs from the time the defect is discovered or should have been discovered with
due diligence, but in no event may the action be brought more than 15 years from
the date on which the statute would have commenced to run if no latent defect
had existed.
Comparative Fault
A defense of comparative fault may, under appropriate circumstances, be asserted
in a professional liability action. Before the Florida Supreme Court's adoption
of comparative negligence principles in Hoffman v. Jones, decisions in
professional negligence cases recognized that the contributory negligence of a
patient or a client would bar recovery. Malpractice cases decided in the wake of
Hoffman have held that comparative negligence on the part of the plaintiff that
contributes to his or her damages reduces but does not bar the recovery for that
injury. The comparative fault doctrine has been codified, effective for causes
of action that arise on or after July 1, 1986.
The few reported decisions that discuss contributory or comparative negligence
defenses in actions for professional negligence commonly involve claims that the
client or patient failed to cooperate with the professional. Other cases have
considered claims that the plaintiff had an obligation to make a reasonable
effort to be involved in and informed about the transaction being handled and to
take independent action to protect his or her interests when the need for such
action would have been apparent to a lay person. In Devco Premium Finance v.
North River Ins., the client failed to review available statistical data that
would have revealed the actual financial status of his company, and therefore he
was held comparatively negligent.
Defenses Based on Contractual Provisions Limitations on Services Undertaken
Because the extent of a professional's duty of care depends on the nature and
scope of the professional undertaking, the provisions of a contract between a
professional and a client that specify or particularize the tasks or functions
the professional is to perform will define and limit the duty of care owed by
the professional.
Exculpatory Clauses
In general, an exculpatory clause in a contract, which shifts the risk of
negligence from the actor to the victim, is enforceable if it is clear,
unequivocal, and not contrary to public policy. Thus, an exculpatory clause that
limited a bank's liability to a customer for the loss of contents of a safe
deposit box, except where the loss was occasioned by the bank's gross
negligence, fraud, or bad faith, was valid. The clause was clear and unequivocal
in its terms, and it did not affront public policy by violating any ordinances
or statutes, or by permitting the bank to abdicate its responsibilities. On the
other hand, a clause that limited an exterminating company's liability to the
expenses of retreatment was unenforceable where other provisions could
reasonably have led the homeowner to anticipate that the company had warranted
its work to cover new infestations and repair costs. In this case, the clause
was ambiguous, deceptive, and inconsistent with the rest of the contract. If
otherwise valid, an exculpatory clause is enforceable even if it limits
liability to a specified amount or completely exempts the actor from liability.
However, the courts have refused to enforce an exculpatory clause that exempts a
defendant from liability for intentional torts. Moreover, if the relative
bargaining powers of the contracting parties are not equal and the exculpatory
clause seeks to exempt from liability the party who occupies the superior
bargaining position, enforcement of the clause may be denied.
Despite the potential difference in bargaining powers between the parties,
exculpatory clauses have been upheld in professional liability cases. For
example, the court upheld a clause exonerating an architect from liability for
the acts or omissions of the contractor or subcontractors in carrying out the
contract. The clause in question clearly absolved the architect from
responsibility for the construction methods or safety procedures of the
builders, although it did promise to endeavor to guard the owner from defective
work by the contractor. The court stated however, that had the architect ignored
his contractual duty to make periodic visits to the site, he would have been
liable notwithstanding the exculpatory clause. Thus the enforceability of such a
clause depended on the defendant's compliance with other provisions and
responsibilities of the contract.
Arbitration Provisions
Under the Florida Arbitration Code, two or more parties, including professionals
and their patients or clients, may agree in writing to submit to arbitration any
existing or future controversy between them, and such agreement to arbitrate
will be enforceable and irrevocable. Arbitration agreements are generally
favored in the law. However, when the arbitration of an issue conflicts with a
policy reflected in other Florida statutes, the arbitration provision will not
be given effect. Thus, when an agreement between a Florida customer and a
foreign corporate stockbroker doing business in Florida specifically stipulated
that the laws of New York should govern the enforcement of the agreement, the
arbitration provisions were unenforceable in Florida.
If a professional and his or her client or patient have agreed to a valid
provision that requires the arbitration of any negligence claim against the
professional, the defendant in a malpractice action may compel the determination
of the claim by means of an arbitration proceeding, obtain a stay of any action
commenced by the client, and secure the entry of judgment in accordance with the
determination made in the arbitration proceeding. A professional who proceeds to
defend against a claim in an action commenced by the client may waive the
contractual right to enforce an agreement requiring arbitration if arbitration
is not requested within a reasonable time.
However, despite a waiver of a contractual right to arbitrate, a court in any
civil action may order arbitration on the request of any party, and
court-ordered arbitration procedures are also available in medical negligence
actions.
Our lawyers are experienced in medical malpractice law and can help clients
determine whether or not malpractice has occurred where someone or something is
injured as a result of negligence or misconduct of individuals in the medical,
dental and related fields.
Medical Malpractice cases may involve negligent diagnosis or delay in the
diagnosis of an underlying disease or condition such as cancer, heart attack,
stroke or infection. Medical Malpractice cases may also involve negligent or
unnecessary surgical procedures or treatment, failure to obtain informed
consent, negligent administration of medication or anesthesia, and the negligent
failure to diagnose or treat problems or symptoms during pregnancy or birth.
Medical Malpractice may occur in many fields of medicine, including, but not
limited to, Gastroenterology, Gynecology, Obstetrics, Radiology Cardiology,
Dermatology, Emergency Medicine, Neonatology, Neurology, Surgery, Oncology,
Opthalmology, Orthopedics, Pathology, Pediatrics, Plastic Surgery, Family
Practice, Internal Medicine, General Practice and Urology.
Medical Malpractice and Other Forms of Medical Liability
What is medical malpractice?
Medical malpractice can be generally defined as negligence on the part of a
physician, hospital or other health care professional which causes physical or
emotional damage to that health care professional?s patient. Although medical
malpractice is limited to negligence, which occurs in the course of providing
medical, or health care, the basic legal issues involved in medical malpractice
is the same as the legal elements in common negligence.
Medical malpractice is also defined as the failure of a medical professional to
meet the standard of good medical practice in the area in which the medical
professional practices. A medical professional may be a doctor, a nurse, a
medical technician, or other health care provider. If the medical professional
fails to meet the standard of good medical practice and harm results to a
patient, the medical professional may be liable for any resulting damages. In
the case of a doctor who is a medical specialist, the standard of care is
determined by the standard of good medical practice in that specialty.
The duty of a medical professional usually is not the duty to cure or to
guarantee a good outcome from treatment. The duty is to provide good medical
care according to accepted standards in the community, or, in the case of a
specialist, accepted standards in that medical specialty. A medical professional
may, however, have a different duty of care if a specific guarantee of a
particular result is given to the patient.
How are medical malpractice cases analyzed?
The basic elements involved in medical malpractice, as in common negligence, are
establishment of a standard of care, proving a breach of that standard of care,
legal causation, and damages.
Generally, standard of care is defined as how a reasonable, careful or prudent
person would behave in similar circumstances. In general, all people have a duty
to avoid creating foreseeable, unreasonable risks of harm to others.
Breach of that standard of care occurs when someone deviates from that standard
of care and creates a foreseeable, unreasonable, risk of harm. Causation and
damages are often intertwined and can be difficult to separate. A legal cause of
action for negligence usually exists when it is determined that the breach of
the standard of care proximately caused damages, usually physical or emotional
in nature to the victim.
These same issues, standard of care, breach of the standard of care, causation
and damage also apply in a case involving medical malpractice. However, the
elements of a negligence cause of action are tailored to the medical or health
care setting. Therefore, in determining whether medical malpractice exists, the
questions become: 1) how would a reasonable, careful and prudent doctor,
hospital or other health care provider behave in the same or similar
circumstances; 2) did the doctor, hospital or other health care provider breach
that standard of care in this specific situation; 3) was the unreasonable,
careless or inappropriate behavior on the part of the doctor, hospital or other
health care provider the proximate cause of 4) injury or damages to the patient
or client?
To prevail in a medical malpractice case, all of the above elements must be
proven. The failure to establish even a single element will prevent the
successful outcome of a medical malpractice suit.
What does "statute of limitations" mean?
The legislature of each state has determined and placed into the state?s laws
the maximum time after the commission of a civil wrong that a lawsuit may be
brought. In general, a medical malpractice case must be filed with the court, no
later than two to four years after the commission of the malpractice. Regardless
of how strong the malpractice claim may be, if the suit is not initiated with
the statute, then the suit cannot be brought.
For example: In January of 1999, John went into the hospital to have surgery
done on his stomach. During the surgery, the doctor negligently left a rubber
strap inside John?s stomach. The rubber strap resulted in a stomach infection
that required intensive medical attention and prolonged hospitalization. If the
statute of limitations for medical malpractice suits are two (2) years from the
time of the malpractice, then John must file suit with the court no later than
January of 2001. If John decides to file suit in January of 2002, then his suit
will be barred from being brought due to the statute of limitations.
In Florida, the statute of limitations in Medical malpractice cases, with some
limited exceptions is two (2) years from the time of the malpractice or from
when the victim should have known of the malpractice, but in no event later than
four (4) years from the malpractice. Any potential claimant should consult a
competent attorney to discuss these issues since many factors may effect the
limitations period.
How do I begin a medical malpractice lawsuit?
If you think that you have a valid medical malpractice lawsuit, it is wise to
seek out an attorney who specializes in medical malpractice. Medical malpractice
is an extremely complicated are of law that raises many complex and
intellectually difficult legal and medical issues. Due to the heavy reliance
upon medical experts, the cost involved in bringing a successful medical
malpractice suit is very high. Most attorneys who specialize in medical
malpractice will provide a free initial consultation to determine whether the
case is worthy of further investigation. Most malpractice specialists have a
number of experienced experts who can determine not only whether the case is
viable, but also how difficult the case will be to try before a jury.
The Doctor-Patient Relationship
The duty of a doctor or other medical professional to provide care to a patient
is usually established by voluntary agreement between the doctor and the
patient. By this agreement, the doctor and patient form a doctor-patient
relationship. Once a doctor-patient relationship is established, the doctor has
a duty of care to the patient. However, even if there is no actual agreement
between the doctor and the patient, the law assumes that there is an agreement
under certain circumstances. For example, if family members seek treatment for
an unconscious patient, the law assumes that there is an agreement between the
doctor and the patient, even if the patient is unable to make any agreement.
Because the doctor-patient relationship is usually formed by an agreement
between doctor and patient, doctors usually do not have an obligation to provide
treatment. Therefore, if a doctor sees an accident on the way home from the
hospital, the doctor does not usually have an obligation to stop and give
assistance. Under certain circumstances, however, a doctor may have an
obligation to provide treatment even if there is no actual voluntary agreement.
For example, hospitals accepting certain kinds of federal funds may be required
to provide care to indigent patients under some circumstances. Doctors who work
in emergency rooms may be required to provide care to anyone coming into the
emergency room with a life-threatening condition.
Doctors responding to emergency situations and providing care for accident
victims may be protected from certain lawsuits by "Good Samaritan" laws. These
laws, enacted in most jurisdictions, usually apply in emergency situations
occurring outside a hospital or other medical facility. Generally, these laws
apply in situations where the doctor did not have a duty to the victim, but
volunteered in good faith to help because of an emergency, and did not request a
fee. If the doctor fits within the Good Samaritan law, the doctor usually cannot
be sued for mere negligence, but only for gross negligence.
Doctor-Patient Confidentiality
Doctors and other medical professionals have a duty to keep patient information
private and refrain from disclosing it to third parties without your consent. A
doctor or medical professional who breaches this duty by disclosing confidential
information, including your medical records, may be liable to you for damages
for any embarrassment or other injury you suffer from the disclosure.
There are many exceptions to the rule that medical information and records must
be kept confidential.
Health insurance companies usually require patients to waive the right to
confidentiality when making a claim for medical coverage.
If a patient sues a medical professional for malpractice, the patient?s medical
records and information may become evidence in the lawsuit.
Many states have statutes and other rules requiring medical professionals to
report certain kinds of patient information to authorities, from reporting the
incidence of certain communicable diseases, to incidents of child abuse and
gunshot wounds.
What is Malpractice?
The concept of medical malpractice negligence is very broad and encompasses
virtually every kind of mistake that could be made by a medical professional. A
common mistake is the failure to properly diagnose a patient's disease or injury
resulting in improper or delayed treatment.
Other actions which may constitute medical malpractice include:
Improperly prescribing a drug
failing to inform the patient of available treatments
or
continuing a treatment that has been shown to be ineffective
failing to provide information to a patient
Some types of injuries are considered "negligence per se" or negligence "on the
face of it," because the particular type of injury could not have occurred
without the negligence of someone involved in the patient's treatment. For
example, if a medical instrument is left inside the patient?s body following an
operation, negligence usually may be assumed without further proof.
Causation
A medical professional may have been negligent in providing care to a patient,
but sometimes that negligence is not the cause of the injury suffered by a
patient. Because the law requires a connection between fault and injury, not all
instances of medical malpractice justify an award of damages. Determining
causation in medical malpractice cases often is very complicated and usually
requires the assistance of expert witnesses.
Expert witnesses are usually required in medical malpractice cases:
to establish the prevailing standard of medical care in the geographical area or
the area of specialty
to establish that the medical professional's negligence (failure to meet the
applicable standard of care) caused the patient's injuries
In rare instances, expert testimony may not be necessary to establish a claim
because the negligence of the medical professional is obvious to lay persons
without the need for any special testimony. For example, a patient who undergoes
the amputation of the wrong leg need not call an expert witness to establish
that malpractice has occurred. Another example is where a medical professional
violates a civil or criminal statute. Sometimes it is sufficient just to prove
that the statute was violated, and that the violation caused the patient's
injuries.
The increasing complexity of medical treatment means that a patient may be
treated by a long list of doctors, nurses, and medical technicians in the course
of treatment. Determining which of these practitioners may have been negligent,
and how that negligence may have caused a patient's injury, can be extremely
complex. For example, one doctor may have incorrectly diagnosed a patient, but a
subsequent doctor may have been negligent as well in failing to correct the
diagnosis. Or a series of mishaps in an operating room, each by a different
technician, may mean that more than one technician is liable for malpractice
because each mishap contributed to the injury. Additionally, the injury may have
been caused by the use of a defective medical device or drug. In those cases,
the law of product liability becomes relevant in determining causation.
Informed Consent
Medical malpractice cases are concerned with whether a medical professional was
negligent, or careless, in providing medical care. A medical professional may
also be liable for failing to obtain a patient's informed consent. However, the
damages a patient may recover in this kind of medical liability action are
different from the damages that might be obtained in a medical malpractice
negligence action.
The law of medical malpractice initially grew out of the intentional tort of
battery, an unlawful, non-consensual touching. If a doctor failed to get the
patient's consent to treatment, the treatment was regarded as a battery. This
view of malpractice evolved into the theory of informed consent. Under the
concept of informed consent, the doctor must not only get the patient's consent
to treatment, but the treatment must be obtained from a fully informed patient.
Because the medical liability theory involves the concept of a lack of consent
to a procedure, a patient may be able to recover damages even if the medical
procedure was successful. In a lawsuit for negligence, the patient must be able
to show that the treatment was in some way harmful.
At a minimum, informed consent usually means that the patient has been informed
of:
the nature of the treatment or procedure that will be performed
any alternatives to that treatment or procedure
the risks of the procedure
the risks of failure to undergo the procedure
Informed consent is especially important in cases involving experimental
treatments.
The patient gives actual consent to a treatment , either orally or in writing.
Sometimes doctors provide extensive and elaborate consent forms for patients to
sign. There are some cases where consent is implied such as:
from conduct indicating a willingness to undergo the treatment.
when an unconscious patient is unable to consent, and there is no family member
available to give consent to treatment
It is usually necessary for a parent or guardian to consent to the treatment of
a child, unless treatment is required in an emergency situation and the parent
or guardian is unavailable to give consent. Exceptions apply to situations where
a minor seeks treatment for:
a sexually transmitted disease
alcohol or drug problems
Abortion is another procedure to which a person under the age of 18 may be able
to give consent, but many states have enacted statutes requiring parental
consent to an abortion.
Sometimes a patient may not wish to accept treatment, or particular kinds of
treatment. If the patient is conscious and competent, the patient can refuse.
Patients may refuse particular kinds of treatment such as a blood transfusion
for religious reasons.
Patients with a terminal illness may wish to refuse life-extending but painful
treatment.
If the patient is unconscious and a family member asserts the patient's wish to
refuse certain treatment, difficult issues are presented which may require a
court proceeding to resolve. Many states have responded to these difficulties
with legislation giving effect to living wills or advanced health care
directives. These documents may give express instruction to health care
providers, or give a family member or other person authority to consent to, or
refuse, treatment on behalf of the patient.
Damages
Usually there are two types of damages available in a negligence medical
malpractice case; actual damages and punitive damages.
Actual damages include the cost of additional medical treatment, lost wages,
lost future earning capacity, and pain and suffering caused by the injury.
Punitive damages are usually only available if the person who caused the harm
acted intentionally, willfully, or recklessly in causing the harm. In some
cases, an award of punitive damages may be many times the amount of the actual
damages, especially if the actions of the person found responsible for the harm
are considered particularly wrongful.
In rare instances, a patient may succeed in proving that a doctor promised a
particular result from a medical treatment or procedure and failed to provide
the promised result. In those cases, the doctor may also be responsible for the
loss of the value of the successful treatment.
The damages available in a medical liability case alleging a lack of informed
consent are somewhat different from those in a negligence medical malpractice
case. Because the theory is that the patient was touched without their consent,
the doctor may be liable for the unlawful touching, regardless of whether the
treatment was successful.
A number of states have enacted statutes limiting the amount of damages that may
be awarded in a medical malpractice negligence action. These statutes may impose
a limit on the total amount of damages, or they may limit punitive damages or
"non-economic" loss.
Liability of Hospitals and Health Maintenance Organizations (HMOs)
Hospitals are generally liable for any actions of their employees that are
undertaken within the scope of their employment. For example, a hospital is
responsible for the actions of a nurse employed by the hospital in the course of
providing care in the hospital.
Questions regarding the liability of hospitals frequently arise when they
involve the actions of a doctor who is not an employee of the hospital.
a doctor may not be on staff, but only have privileges at the hospital
a doctor may be on the staff of the hospital but bill patients directly for
services rendered
Traditionally, these doctors are considered independent contractors rather than
employees, and the hospital may not be automatically liable for their
negligence. Exceptions to this general rule have been recognized in situations
where the patient has every reason to believe that the doctor is employed by the
hospital. For example, hospitals have been held liable for the actions of
doctors working in their emergency room even if they were not employees, as well
as for anesthesiologists and radiologists.
Ever-changing federal law complicates the liability of a Health Maintenance
Organization (HMO) for the medical malpractice negligence of one of its doctors.
The federal Employment Retirement Income Security Act of 1974 (ERISA) has been
held by some courts to preempt state law medical negligence claims involving
HMOs, because HMOs are a form of employee benefit plan. If a particular claim is
preempted by ERISA, the HMO cannot be held liable under state law for the
doctor's medical malpractice negligence. This means that the patient can bring a
lawsuit only against the doctor, not the HMO. Some contract claims against an
HMO may be precluded by ERISA as well. Judicial decisions can be expected to
define the law in this area in the next several years.
P R A C T I C E A R E A S - N u r s i n g H o m e Abuse
As part of our personal injury practice, we handle nursing home abuse claims.
Nursing Home cases may involve negligent nursing home care or supervision resulting in fractures or other injuries resulting due to falls, malnutrition, dehydration, pressure sores or decubitus ulcers, death, negligent administration of medications or other negligence or improper conduct that causes injury and violates the patient's rights.
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