A few days ago, @10cents had a post on malpractice. In a comment, I promised to elaborate on the legal definition of malpractice. Here is installment 1:
Commenting on @10cents recent post on malpractice and related professional misdeeds, I promised a post on the legal definition of malpractice. In order to husband my personal resources and keep this to less than book length, I will write and publish it in installments. I think it important at the outset to distinguish between simply doing a lousy job at something and actual malpractice; allegations of malpractice do not constitute proof; every bad outcome does not result in a lawsuit. Now, @10 cents’ original post addressed professionals and his use of the term malpractice was apt, since legally, malpractice is a term of art applied to professional negligence. Professional negligence contrasts with ordinary, run-of-the-mill negligence only to the extent that facts, practices and causation of alleged professional negligence are usually arcane and beyond the experience of ordinary citizens who serve on juries. Thus expert witnesses come into play.
The legal difference then, is that when it comes to ordinary negligence, laymen can generally understand whether or not, say, the supermarket removed the banana peel from the floor quickly enough to prevent a fall and broken arm or whether or not a driver was tailgating and caused an accident. All the underlying facts in such cases are within the life experience of the average juror, whose job is to 1. be the finder of facts (decide whether the plaintiff’s or the defendant’s case is closer to the truth) and 2. to apply the law to these facts as instructed by the judge. This manner of pursuing truth, by the way, is known as “the adversarial truth-finding process.” Each side has an incentive to give it its best shot. Compare an ordinary auto accident case to one alleging that a permanent neurological deficit resulted from otherwise successful craniotomy surgery to remove a brain tumor. Since laymen know nothing about brain surgery, in such allegations of malpractice the law requires testimony of expert witnesses, whose job is (theoretically) to educate the jurors so they may sufficiently understand medical facts which are not part of their life experiences. More on expert witnesses later.
Thus far, we have established that, legally speaking “malpractice” refers to negligence on the part of an individual or entity engaged in a profession, whose activities are beyond the ordinary experience of most jurors. Keep in mind that all negligence/malpractice cases are due to the occurrence of property damage or bodily injury plus the belief on the part of the plaintiff that it should have been prevented. Malpractice/negligence must be distinguished from intentional torts, which result in damage to property or bodily harm in consequence to an intentional act, not accidental bad results. Intentional torts, like assault or battery – require proof of intent – can result in criminal liability and possible incarceration. In contrast, negligence law acts to make injured plaintiffs economically whole so does not inflict punishment. Further, intentional torts may be either civil (the plaintiff is an individual or private entity) or criminal (the plaintiff is the state). Only in exceptional circumstances may negligence (gross negligence or recklessness) lead to criminal penalties. In order to succeed, an allegation of malpractice requires proof by a preponderance of the evidence (that it is more likely than not) – that each of the following four elements has been proved:
- The defendant owed a duty of reasonable care to the plaintiff while performing acts which could foreseeably cause harm. i.e. the defendant was obliged to perform within the standard of care.
- The defendant breached that duty. i.e. the defendant did not adhere to a reasonable standard of care.
- The breach of the standard of care was the proximate cause of the harm or damages. i.e. that not following a reasonable standard of care was both the cause-in-fact of the damage and a cause which the law chooses to recognize as sufficiently closely related to the damages.
- The amount of economic damages must be reasonably proved. The economic value of damaged property must be shown, along with the economic consequences of bodily harm, such as medical expenses and loss of income and, in some cases, pain and suffering.
Much case law exists, beginning with ancient English common law, which fleshes out each of these elements. Cases are quite wide-ranging due to the infinite number of possible fact patterns of human interactions. The variety of facts as to standard of care, proximate causation and damages, as well as their varied interpretation by different courts at different times, accounts for the large number of cases which law students must read. Most principles of negligence law were developed by the common law on a case-by-case basis. In the common law, judges relied upon precedent established by similar cases or wrote opinions distinguishing the present case as different for specific, articulated reasons. The value of this type of jurisprudential system is that it allows efficiency in human action and maximum individual liberty in interpersonal interactions, while allocating economic loss of bad outcomes retrospectively. The alternative is to live under a rigid set of a priori rules aimed at “safety,” regardless inefficiency or degree of constraint on individual behavior. Today, some might assert we live in the worst of both possible worlds – a web of common law and tangled, overlapping statutory and regulatory law which are simultaneously stifling and coercive.
As a jurisprudential matter, much of what developed in common law over hundreds of years has been systematized into various “restatements” of the law which have been adopted as statute or regulation in some states and I should add that most negligence law is state, as opposed to federal (the only negligence cases heard in federal courts are those which involve parties from different states – so-called “diversity of citizenship” jurisdiction of federal courts).
In a further installment (when I can get to it), I will expand on each of the above elements of required proof of malpractice. There are lots of interesting twists, as you can imagine, when it comes to blaming someone else. American tradition and culture, it seems, have made for creativity both in entrepreneurship and in imaginative plaintiff theories. As well, the U.S. is an outlier when it comes to who pays litigation costs. Here, each side pays its own costs of litigation. In most of the rest of the world, the loser pays costs of both sides. That rule acts as a strong deterrent of frivolous complaints. Lacking such deterrence, and given the unpredictability of juries, we see much legal frivolity and some outrageous results (like a $2 million award for a self-inflicted burned crotch, where a plaintiff spilled cup of hot drive-through take-out coffee on herself!).
To be continued…
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