Attorneys have a fiduciary responsibilities to their clients, and they must behave with skill, diligence and care. But, as with all professionals, attorneys make mistakes.
A mistake made by an attorney is negligence. To prove that legal malpractice has occurred, the aggrieved party has to prove the breach of duty, duty, causation and damages. Let's look at each of these components.
Duty
Doctors and other medical professionals swear to use their education and experience to help patients and not to cause further harm. Duty of care is the basis for the right of patients to receive compensation if they are injured by medical negligence. Your attorney can determine if your doctor's actions breached the duty of medical care and if these breaches resulted in your injury or illness.
Your lawyer has to prove that the medical professional you hired owed a fiduciary duty to act with reasonable competence and care. This can be demonstrated by eyewitness testimony, doctor-patient reports and expert testimony from doctors with similar educational, experience and training.
Your lawyer will also have to prove that the medical professional violated their duty of care by not adhering to the accepted standards of practice in their field. This is commonly referred to by the term negligence. Your lawyer will be able to compare what the defendant did to what a reasonable person would do in a similar situation.
In addition, your lawyer must prove that the defendant's lapse of duty directly resulted in injury or loss to you. This is known as causation. Your lawyer will make use of evidence like your medical or patient records, witness testimony, and expert testimony, to show that the defendant’s failure to meet the standard of care was the direct cause of the injury or loss to you.
Breach
A doctor is required to perform a duty of care to his patients which reflects professional medical standards. If a doctor does not meet these standards, and the resulting failure causes an injury, then medical malpractice or negligence could occur. Expert testimony from medical professionals who have similar training, certificates as well as experience and qualifications can help determine the standard of care for a specific situation. State and federal laws, as well as institute policies, define what doctors are required to do for certain types of patients.
To be successful in a malpractice case the evidence must prove that the doctor did not fulfill his or her duty to care and that the violation was the direct cause of an injury. In legal terms, this is known as the causation factor and it is crucial to establish. For instance in the event that a damaged arm requires an x-ray, the doctor has to properly set the arm and then place it in a cast for proper healing. If the doctor fails to perform this, and the patient suffers a permanent loss in the use of the arm, malpractice may have taken place.
Causation
Lawyer malpractice claims are based on evidence that the attorney made mistakes that caused financial losses to the client. For example the lawyer does not file a lawsuit within the statute of limitations, which results in the case being lost forever, the injured party could bring legal malpractice litigation lawsuits.
It is important to realize that not all errors made by lawyers are a sign of illegal. Mistakes in strategy and planning do not typically constitute malpractice, and attorneys have the ability in making judgment calls so long as they're reasonable.
The law also gives attorneys a lot of discretion to conduct discovery on behalf of a client's behalf, as long as it was not negligent or unreasonable. Failing to discover important information or documents, such as medical reports or witness statements, is a potential example of legal malpractice. Other instances of malpractice lawsuit include the inability to add certain defendants or claims, such as not noticing a survival count in an unjustly-dead case or the constant failure to communicate with clients.
It's also important to keep in mind that it must be proven that, had it not been the negligence of the lawyer the plaintiff would have won the underlying case. If not, the plaintiff's claims for malpractice will be denied. This makes the filing of legal malpractice attorney, explanation, claims a challenge. It's crucial to hire an experienced attorney.
Damages
A plaintiff must demonstrate that the attorney's actions caused actual financial losses to win a legal malpractice litigation suit. This has to be demonstrated in a lawsuit by utilizing evidence such as expert testimony, correspondence between client and attorney, billing records and other documentation. A plaintiff must also demonstrate that a reasonable attorney would have prevented the harm caused by the lawyer's negligence. This is known as the proximate cause.
Malpractice can manifest in a number of different ways. Some of the more common kinds of malpractice are the failure to meet a deadline, malpractice Attorney for example, the statute of limitation, failure to conduct a check on conflicts or other due diligence of the case, not applying law to a client's situation, breaching a fiduciary duty (i.e. Commingling funds from a trust account with an attorney's account, mishandling a case and not communicating with the client are just a few examples of misconduct.
In the majority of medical malpractice litigation cases the plaintiff will seek compensation damages. These compensate the victim for the out-of-pocket expenses and losses, such as hospital and medical bills, costs of equipment needed to aid in recovering, and lost wages. In addition, victims may be able to claim non-economic damages such as suffering and suffering or loss of enjoyment life, and emotional distress.
Legal malpractice cases typically involve claims for compensatory as well as punitive damages. The former compensates a victim for the losses caused by the negligence of an attorney, while the latter is intended to discourage future malpractice by the defendant.
