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The elements of professional negligence

Professional malpractice may be one of the most commonly misunderstood concepts in California law. Most Californians are familiar with the concept of negligence, that is, the failure to use due care in carrying out a duty owed to another person. For example, all drivers owe a duty of care to other drivers in obeying traffic laws such as lane markings, traffic signals, and speed limits. The negligent violation of one of these duties gives rise to a cause of action for damages against the negligent driver.

Comparing professional negligence to common law negligence

Professional negligence is conceptually similar to common law negligence. For example, to prove a claim of medical malpractice, the injured patient must prove the existence of a duty to use due care; this element is satisfied when the patient establishes the existence of a doctor-patient relationship. The exact nature of the duty may vary, depending upon whether the physician has held himself out as a specialist in the type of care being sought by the patient. The breach of the duty is usually proved by expert testimony to the effect that the defendant physician failed to use procedures normally used by other physicians in the community. The plaintiff must also prove that an injury was caused by the defendant’s negligence. Again, this element is usually proved by testimony from other physicians who are familiar with the condition that was being treated. The monetary damages caused by the physician’s negligent acts can be proved by the plaintiff’s own testimony or testimony from physicians that have treated the effects of the negligent acts.

Legal malpractice

Legal malpractice is much the same. The duty of care owed by the lawyer is proved by the existence of the attorney-client relationship. The breach of the duty is usually proved by testimony from other attorneys who are familiar with the legal situation in which the negligence occurred. Damages in legal malpractice cases usually are financial and can be proved by testimony from other lawyers or from accountants or other financial experts.

Other types of professional negligence are susceptible to the same kinds of analysis outlined above. A negligent act or omission is usually proved with testimony from other professionals who are familiar with the situation in which the alleged negligence occurred. Causation and damages are usually proved by expert testimony. Anyone who believes that they may be facing a claim for professional negligence may wish to consult an attorney who is knowledgeable about defending such claims for an evaluation of the evidence and an opinion on potential defense strategies and the likelihood of prevailing.


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