In the law of torts, malpractice, also known as professional negligence, is an "instance of negligence or incompetence on the part of a professional".
Professionals who may become the subject of malpractice actions include:
medical professionals: a medical malpractice claim may be brought against a doctor or other healthcare provider who fails to exercise the degree of care and skill that a similarly situated professional of the same medical specialty would provide under the circumstances.
lawyers: a legal malpractice claim may be brought against a lawyer who fails to render services with the level of skill, care and diligence that a reasonable lawyer would apply under similar circumstances.
financial professionals: professionals such as accountants, financial planners and stockbrokers, may be subject to claims for professional negligence based upon their failure to meet professional standards when providing services to their clients.
architects and engineers: a construction professional may be accused of professional negligence for failing to meet professional standards in the design and construction of buildings and structures.
Professional negligence actions require a professional relationship between the professional and the person claiming to have been injured by malpractice. For example, in order to sue a lawyer for malpractice the person bringing the claim must have had an attorney-client relationship with the lawyer.
To succeed in a malpractice action under typical malpractice law, the person making a malpractice claim must prove both that the professional committed an act of culpable negligence and that the person suffered injury as a result of the professional's error.
Medical malpractice
Medical malpractice is a highly complex area of law, with laws that differ significantly between jurisdictions.
In Australia, medical malpractice and the rise in incidences of claims against individual and institutional providers has led to the evolution of patient advocates.
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A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate.
In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care to avoid careless acts that could foreseeably harm others, and lead to claim in negligence. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law that the defendant has breached. In turn, breaching a duty may subject an individual to liability.
Medical malpractice is a legal cause of action that occurs when a medical or health care professional, through a negligent act or omission, deviates from standards in their profession, thereby causing injury or death to a patient. The negligence might arise from errors in diagnosis, treatment, aftercare or health management. An act of medical malpractice usually has three characteristics. Firstly, it must be proven that the treatment has not been consistent with the standard of care, which is the standard medical treatment accepted and recognized by the profession.