When engaging with another person for their services (financial, legal or medical), we should expect a reasonable standard of care and responsibility when that person delivers their services. For instance, when a person fails to carry out their responsibilities to deliver a service, that person should be accountable for whatever damage or harm they cause. This refers to a professional’s duty of care. In other words, a service provider or professional who does not act with a duty of care will be acting negligently. This article will explain the meaning of professional negligence and its relationship with malpractice.
What is professional negligence?
To begin, professional negligence occurs when a licensed professional fails to carry out their job with reasonable skill and care. Broadly speaking, this captures any individual who owes a duty of care to a client. Moreover, this obligation is a common law doctrine that imposes a standard that must be followed by practitioners of the associated profession.
Professionals generally captured by this doctrine include:
- Accountants.
- Financial advisors.
- Medical practitioners.
- Solicitors.
- Bankers.
- Builders.
To continue, a duty of care imposes a legal responsibility on someone to make sure they carry out their services safely, responsibly and adequately in order to prevent any harm or damage. The scope of this duty will vary depending on the industry and circumstances. For more on the rules of negligence, check out our guide on ‘Can You Still Sue Someone If You Were Partly Negligent?‘.
Acts of negligence can involve:
- Firstly, a failure to provide adequate advice;
- Incorrect treatment;
- Mistakes that cause harm;
- Inaccurate evaluations or course of action; or
- Lastly, a failure to act when there was an expectation to do something.
For more on negligent action, check out our guide on ‘What is Negligent Driving?‘.
What is malpractice?
Malpractice is a form of professional negligence. It specifically refers to the negligence of medical practitioners or healthcare workers. Under a malpractice claim, an individual will be entitled to damages where injury or harm occurs as a result of medical negligence. Moreover, injury or harm can be mental or physical.
Medical negligence can involve:
- Prescribing the wrong or inappropriate medication;
- Incorrectly or mistakenly carrying out a surgery;
- An inaccurate or wrong diagnosis;
- Failing to take action; or
- Lastly, unprofessional or inadequate treatment.
Persons that can be liable for malpractice include, for example:
- Surgeons.
- Healthcare specialists.
- Nurses or hospital staff.
- Pharmacists.
- Dentists.
- Psychiatrists.
- Physiotherapists.
Furthermore, a person can claim malpractice where it can be proven that a professional did not abide by the standard of skill and care expected by their profession or industry. This will require a person harmed by negligence to prove:
- There was a duty of care or obligation;
- The professional breaches that duty of care;
- There is a clear link between the harm suffered and the breach of that duty; and
- Lastly, the damages being sought relate to the harm and breach of duty.
Summary
- Firstly, professionals owe a duty of care to their clients;
- Secondly, malpractice is a form of professional negligence;
- Lastly, the duty of care will vary according to industry standards and expectations.
