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Attorneys are bound by a fiduciary obligation to their clients, and they must act with diligence, skill and care. However, like all professionals attorneys make mistakes.
Every mistake made by an attorney constitutes malpractice. To prove legal malpractice, an victim must prove that there was breach of duty, causation, breach and damage. Let's look at each of these elements.
Duty-Free
Doctors and other medical professionals swear by their training and experience to help patients and not to cause harm to others. A patient's legal right to be compensated for injuries sustained from medical malpractice hinges on the concept of duty of care. Your attorney can help you determine whether or not your doctor's actions violated this duty of care, and if the breach caused injury or illness to you.
Your lawyer has to prove that the medical professional in question owed you a fiduciary duty to act with reasonable skill and care. This can be proved by eyewitness testimony, physician-patient reports and expert testimony from doctors who have similar educational, experience and training.
Your lawyer will also have to prove that the medical professional breached their duty of caring in not adhering to the accepted standards of their field. This is often called negligence. Your lawyer will assess the conduct of the defendant with what a reasonable person would perform in the same situation.
In addition, your lawyer must demonstrate that the defendant's breach of duty directly led to the loss or injury you suffered. This is called causation. Your lawyer will make use of evidence like your doctor or patient records, witness testimony and expert testimony, to show that the defendant's inability to adhere to the standard of care was the sole reason for the loss or injury to you.
Breach
A doctor is bound by a duty of treatment to his patients that corresponds to professional medical standards. If a doctor fails adhere to these standards and this results in injury, negligence and medical malpractice might occur. Expert testimony from medical professionals who have similar training, certificates, skills and experience can help determine the quality of care in a given situation. State and federal laws and institute policies can also be used to determine what doctors are required to do for certain types of patients.
To win a malpractice case, it must be shown that the doctor breached his or duty of care and that this breach was a direct cause of an injury. This is known in legal terms as the causation element, and it is vital that it is established. For instance an injured arm requires an xray the doctor must properly place the arm and put it in a cast for proper healing. If the physician failed to do this and the patient was left with an irreparable loss of use of the arm, then malpractice may have occurred.
Causation
Attorney malpractice claims rely on evidence that demonstrates that the attorney's errors caused financial losses to the client. For example the lawyer does not file a lawsuit within the prescribed time of limitations, resulting in the case being lost forever and the victim can bring legal malpractice actions.
However, it's important to realize that not all mistakes made by attorneys constitute malpractice. Strategies and mistakes do not typically constitute malpractice attorneys are given a lot of latitude in making judgment calls so long as they're reasonable.
The law also allows attorneys an enormous amount of discretion to not conduct discovery on behalf of a client, so long as the failure was not unreasonable or negligence. Failure to uncover important information or documents, such as medical or witness statements or medical reports, could be an instance of legal malpractice. Other examples of malpractice include a failure to add certain defendants or claims such as omitting to make a survival claim in a wrongful-death case, or the repeated and prolonged inability to contact the client.
It is also important to keep in mind the fact that the plaintiff needs to prove that if not for the lawyer's careless conduct they could have won their case. If not, the plaintiff's claims for malpractice will be rejected. This requirement makes bringing legal malpractice claims difficult. Therefore, it's essential to choose an experienced attorney to represent you.
Damages
In order to prevail in a legal malpractice suit, the plaintiff must show actual financial losses incurred by the actions of an attorney. In the case of a lawsuit this has to be demonstrated using evidence, like expert testimony or correspondence between the attorney and client. In addition the plaintiff must show that a reasonable lawyer would have prevented the harm caused by the attorney's negligence. This is known as proximate cause.
Malpractice can occur in many different ways. Some of the most common types of malpractice include the failure to meet a deadline, such as the statute of limitation, failure to conduct a check on conflicts or any other due diligence on a case, improperly applying the law to a client's case, breaching a fiduciary duty (i.e. Commingling funds from a trust account with the attorney's own accounts or handling a case improperly and not communicating with the client are all examples of malpractice.
Medical malpractice lawsuits typically involve claims for compensatory damages. These compensations are intended to compensate the victim for the cost of out-of-pocket expenses and losses, such as medical and hospitals bills, costs of equipment to aid in recovery and lost wages. Victims are also able to claim non-economic damages, such as discomfort and pain and loss of enjoyment their lives, as well as emotional anxiety.
Legal malpractice cases often involve claims for compensatory as well as punitive damages. The former compensates victims for the losses caused by the negligence of the attorney, while the latter is intended to deter future malpractice by the defendant.
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