A Bird’s Eye View on Malpractice

A specialized but important offshoot of negligence practice is professional liability or malpractice. The idea behind professional liability is that those who have special training and expertise should exercise the degree of care in dealing with patients or clients commensurate with other members of the calling. For example, for the purpose of treating injuries a doctor is held to the standard of care of other doctors similarly situated rather than the standard of care of someone who has not been to medical school.

Medical Malpractice Cases Have Become Intense

It is no secret that malpractice litigation has mushroomed in recent decades. The willingness of injured people to sure professionals has provoked widespread controversy. Injured plaintiffs are no longer willing to sit back and endure careless mistakes to those to whom they entrust their lives and fortunes. Defendants and insurance companies claim that increased litigation drives up the cost of services and drives competent professionals out of the business.

Although these questions cannot be answered in this book, the prospective lawyer may want to consider the social policy considerations inherent in this debate. Rhetoric sometimes casts the question in terms of pro- or anti-lawyer sentiment, but this is not an accurate characterization, because lawyers represent partisans on both sides of the issue. The real questions involve how and when injure persons should be compensated for injuries and when they should bear the risk of loss themselves.

The largest segment of malpractice litigation involves doctors. It is not the case that doctors must always be correct, only that they must make reasonable judgments under the circumstances. Doctors are also required to inform patients of the potential risks of a particular proposed course of treatment. In medical malpractice, as well as other forms of professional liability, expert testimony is usually required to establish the elements of the plaintiff’s case.

In order to show what a reasonable doctor would have done, the plaintiff’s lawyer must introduce testimony from another doctor to that effect. Because of this requirement and the complexity and medical problems themselves, malpractice litigation can be an extremely complicated business. As with other areas of tort law, insurance is almost always present, and settlement of claims occurs far more often than jury trials.

Medical Malpractice and other Liability Cases

Although medical malpractice dominates the professional liability field, other professionals are increasingly subject to suits by their clients. Lawyers, accountants, ministers, teachers, and other professionals have successfully been sued for malpractice. Even in areas that have not traditionally been recognized as professions, individuals holding themselves out as possessing superior expertise have been held to the standards they profess.

Thus, a plumber may hold himself out of the public as knowing more about how to fix pipes than ordinary laymen. He cannot be heard to complain that he did as good a job as an ordinary person when his plumbing job is done poorly compared to the work of other plumbers. In this environment, everybody who possesses special knowledge or qualifications (and probably charges higher fees accordingly) should understand the professional standard to which they will be held under the law and should obtain insurance to protect against the risk of malpractice.

The Basics of Product Liability Law

The field that is now termed product liability law evolved over the years out of negligence. Historically, as the industrial revolution produced machines and other products that made both work and living easier, injuries related to these products increased. For much of the nineteenth century, the law was stacked heavily in favor of product manufacturers. This was due in part to the public policy favoring industrial and economic growth, but it was also related to the inability of legal principles established in the medieval non-industrial times to cope with the problems of the industrial revolution.

product

Work-related Injuries

Work-related personal injuries eventually were covered by worker’s compensation laws that spread the losses due to injuries among employers – regardless of fault. The idea was that such costs could be borne more easily by employers who would profit by their industrial activity than by workers whose injuries often cut off any form of livelihood.

The problem was not as easy when it came to consumers injured by products sold on the open market. As for immediate purchasers of products from manufacturers, the producers of the product could contractually disclaim any warranties or promises concerning product safety. Product users who did not actually purchase the product were said not to be in privity of contract with manufacturer, meaning that absent some contractual or other relationship, the manufacturer had no duty with respect to the user.

Even more problematic in many cases was the inability or injured parties to prove negligence in the manufacturing process. First, the manufacturer typically had exclusive access to the process of production. Second, the product frequently traveled through many hands – such as distributors and retailers – before reaching the user, and the conduct of any of these intervening parties could have been responsible for the injuries that resulted. This is good reason to seek the help of an experienced defective products accident lawyer if you have sustained injuries caused by defective products.

Because of the legal obligations to prove  your case,  this is good reason to seek the help of an experienced defective products accident lawyer if you have sustained injuries caused by defective products.

Negligence Must Be A Factor

Third, in many cases the conduct of the individual user was negligent also. This meant that many injuries went without remedy. The courts, being generally sympathetic to injured plaintiffs, slowly developed theories to provide redress for these product injuries, first in the form of implied warranties that existed without regard to the contractual relationship between the parties, and then in the form of strict product liability.

The theory of strict product liability is fairly simple: one who places a defective product in the stream of commerce may be held liable to a purchaser or user of such product who is injured as a result to its use. As with work-related injuries, the public policy principle is that manufacturers and distributors who profit by the sale of products are in a better position to spread the risk of loss among all consumers as the cost of doing business than are individual product purchasers and users.

While the basic concept of strict product liability is widely accepted today, there are wide variations in the law from jurisdiction to jurisdiction, and countless issues are subject to litigation as this field unfolds. For these reasons, product liability is one of the most active and dynamic areas of law practice in the country.

All about Tort Law

The field of tort law is a broad one. In fact, torts represent not one cohesive theory, but a number of distinct legal actions. The word tort derives from the old French word for “wrong,” and seems to have entered Anglo-American jurisprudence by way of the Normans who conquered England in 1066. Over the years, tort remedies evolved as civil actions to compensate injured persons. Originally there may have been a close link to the criminal law, at least as a means of punishing wrongdoers, but over the years tort remedies came to focus more on compensation than punishment.

Basic Theories of Tort Law

Today tort cases proceed on one of three basic theories: 1. International torts, where the defendant intended conduct that injured the plaintiff; 2. Negligence, where the defendant breached a duty to act with reasonable care and caused the plaintiff’s injury; and 3. Strict liability, where the defendant, for policy reasons, in held responsible for the plaintiff’s injuries regardless of fault. Although there are many kinds of torts, from personal injury to business torts, liability always rests on one of these theories.

This section describes a little bit about tort practice. Tort law is a widespread practice area because people can be injured anywhere. Tort lawyers may represent injured plaintiffs, defendants charged with liability, or insurance companies. Because many defendants are corporations such as manufacturers or distributors of products, or insurance companies protecting individuals against specified risks, defense practice is concentrated in larger law firms and in-house legal departments. Plaintiffs tend to be represented by individual practitioners or small firms specializing in tort law.

Tort Law

Personal Injury and Tort Problems

Because personal injuries and other tort problems are so pervasive, almost every lawyer in private practice will encounter some work in this field. The practice is litigation-intensive, however, so many generalists prefer to refer tort cases to those specialized in trying them. The unique contingency fee structure in the sort area gives plaintiff’s lawyers a percentage (typically one-third) of the recovery if they win or settle and nothing if they lose.

The arrangement can be very lucrative or unprofitable depending on the success of a lawyer’s practice. Typically, tort lawyers represent either plaintiffs or defendants, but the separation of plaintiff and defense practice is not as rigid as it is in some areas of law such as labor.