Professional Negligence

P R A C T I C E A R E A S - P r o f e s s i o n a l N e g l i g e n c e

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.

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.

OSHEROW, SHINER & ASSOCIATES, P.A., BOCA CORPORATE PLAZA, SUITE 650, 7900 GLADES ROAD, BOCA RATON, FLORIDA 33434
TELEPHONE: (561) 477-5054 FACSIMILE: (561) 477-3661 www.osherowlaw.com E-MAIL: mrosh@osherowlaw.com