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Attorneys are bound by a fiduciary obligation 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 constitutes malpractice. To prove legal malpractice, an aggrieved person must demonstrate obligation, breach, causation and damages. Let's review each of these elements.
Duty
Doctors and other medical professionals swear by their training and skills to cure patients and not cause harm to others. The legal right of a patient to receive compensation for injuries resulting from medical malpractice hinges on the notion of the duty of care. Your attorney can determine if your doctor's actions breached the duty of medical care and if the breach caused injury or illness.
Your lawyer must demonstrate that the medical professional in question owed you the fiduciary obligation to act with reasonable competence and care. This relationship can be established by eyewitness testimony, physician-patient records, and expert testimony of doctors who have similar education, experience, and training.
Your lawyer must also prove that the medical professional violated their duty of care by failing to adhere to the standards of practice that are accepted in their field. This is typically called negligence. Your attorney will compare what the defendant did with what a reasonable individual would do in the same situation.
Your lawyer will also need to prove that the defendant's negligence led directly to your loss or injury. This is referred to as causation, and your attorney will use evidence like your doctor-patient documents, witness statements and expert testimony to prove that the defendant's inability to meet the standard of care in your case was the direct cause of your injury or loss.
Breach
A doctor is obligated to patients to perform duties of care that conform to professional medical standards. If a doctor fails to meet those standards and this results in injury, then negligence and medical malpractice might occur. Expert testimony from medical professionals who have similar training, certificates and skills can help determine the standard of care in a particular situation. Federal and state laws and institute policies also determine what doctors should do for specific types of patients.
To win a malpractice case it must be proven that the doctor breached his or their duty of care, and that this breach was a direct cause of injury. This is referred to in legal terms as the causation element and it is imperative that it is established. For example when a broken arm requires an xray, the doctor should properly fix the arm and place it in a cast for proper healing. If the doctor was unable to do so and the patient suffered a permanent loss of function of that arm, then malpractice may have occurred.
Causation
Attorney malpractice claims rely on the evidence that proves that the lawyer's errors resulted in financial losses for the client. For instance, if a lawyer does not file a lawsuit within the prescribed time of limitations, leading to the case being lost forever the party who suffered damages can bring legal malpractice actions.
However, it's important to understand that not all errors made by lawyers constitute malpractice. Strategies and mistakes do not typically constitute malpractice, and attorneys have a lot of latitude in making judgment calls so long as they are reasonable.
The law also grants attorneys considerable latitude to not perform discovery for a client, so long as the reason for the delay was not unreasonable or negligent. The failure to discover crucial facts or documents like medical reports or witness statements can be a case of legal malpractice. Other examples of malpractice include a inability to include certain claims or defendants such as omitting to make a survival claim in a case of wrongful death, or the repeated and long-running inability to communicate with clients.
It's also important to note that it has to be proven that, had it not been the negligence of the lawyer, the plaintiff would have won the case. If not, the plaintiff's claims for malpractice will be rejected. This makes bringing legal malpractice claims difficult. It's essential to choose an experienced attorney to represent you.
Damages
To prevail in a legal malpractice lawsuit plaintiffs must show financial losses caused by an attorney's actions. This should be proved in a lawsuit with evidence such as expert testimony, correspondence between the client and attorney or 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 called proximate causation.
Malpractice can occur in many different ways. Some of the more common types of malpractice include: failing to adhere to a deadline, which includes a statute of limitation, failure to conduct a conflict check or other due diligence check on a case, improperly applying law to a client's circumstance and breaching a fiduciary responsibility (i.e. Commingling funds from a trust account with an attorney's account, mishandling a case and failing to communicate with the client are all examples of malpractice.
Medical malpractice lawsuits typically include claims for compensatory damages. These compensations are intended to compensate the victim for out-of-pocket expenses as well as expenses like medical and hospitals bills, the cost of equipment to help recover and lost wages. Additionally, victims may be able to claim non-economic damages like pain and suffering as well as loss of enjoyment life and emotional distress.
Legal malpractice cases often include claims for compensatory and punitive damages. The former compensates the victim for losses caused by the negligence of an attorney, while the latter is intended to deter future malpractice by the defendant.
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