The number one type of personal injury case seen in the U.S. are those stemming from accidents involving cars, trucks, and motorcycles. A vast majority never see trial, with 90% to 95% being settled pretrial. Sometimes, however, these personal injury cases cross the line into other areas of tort law, such as professional malpractice.
Like most personal injury cases, professional malpractice claims often rely on a legal concept of negligence to prove the fault of the defendant. For a jury to determine if an individual in a personal injury case or professional malpractice suit is guilty of negligence, it must first be established that the defendant had a duty of care and then breached that duty.
In legalese, duty of care is used to refer to an individual’s responsibility to avoid harming or causing harm to another individual. To demonstrate a negligence of this duty of care, then, one must first prove that the defendant had a duty of care to begin with. This is easier to do with personal injury litigation that involves professional malpractice as duty of care is higher for a professional than it is for an average citizen.
In general, a professional’s duty of care is such that would be exercised by a reasonably prudent professional in the field. For instance, a pharmacist may be found guilty of pharmaceutical malpractice if he made an error in filling a prescription which then caused harm to the patient. Likewise, a construction worker could be at fault of professional malpractice if he failed to remove hazardous equipment from the road, leading to a motor vehicle accident. Alternatively, the manufacturer of construction equipment has product liability if his equipment malfunctioned while being used by a construction worker and thus caused either the worker or nearby drivers harm. A professional malpractice and personal injury claim could be brought against this manufacturer for the injuries incurred.
For non-professionals, there is still a duty of care to be upheld. A driver has a responsibility to take reasonable care while operating his motor vehicle. This responsibility includes obeying traffic laws and having awareness of traffic and weather conditions. With state laws governing driving conduct, if one driver was in clear violation of the law, it’s generally the case that he also breached his legal duty of care.
Other types of duty of care breaches that could result in a personal injury or professional malpractice suit could include a property owner who has failed to keep his premises free of hazards that results in a slip and fall injury. A common type of professional malpractice is medical malpractice. If a medical professional fails to treat a patient with the level of care and expertise expected of a reasonably competent professional in her role, she may have breached her duty of care.
Medical malpractice could result in not only bodily personal injury but also financial personal harm from extraneous medical bills. Over 60% of all cases involving personal bankruptcy were due to medical expenses. Other common types of professional malpractice that may or may not cause personal injury include broker malpractice, often from not taking prudent care when acting under his fiduciary responsibility to his client, accounting malpractice, such as from being negligent or careless in the preparation of financial documents, and legal malpractice caused by a failure to abide by the code of ethics or failure to appear on the client’s behalf.
Once duty of care has been established, the next step is determining fault. Establishing a breach of duty of care falls to the plaintiff and his or her attorney. It may be that the plaintiff’s actions played a part in causing her injuries. As such, in most states, her total compensation from the personal injury case will be reduced in accordance with the degree in which her actions were at fault. Other states provide for contributory negligence, in which case any degree of fault on the part of the plaintiff would render her unable to collect damages at all.
The final step to demonstrating negligence is to show the harm incurred by the plaintiff was caused by the defendant’s breach of duty of care. At which point, the personal injury or professional malpractice claim should be demonstrated.