Professional Negligence (What It Is And What You Must Know)

What is Professional Negligence?

How do you legally define it?

What are the elements to prove professional negligence in court?

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What Is Professional Negligence

Professional negligence is when professionals (such as a doctor, dentist, lawyer, accountant or other) breach their duty of care (due to negligence), causing their clients harm or damages.

In other words, when a professional does not provide professional service with competence, skills, prudence, and diligence, the conduct or behavior may be qualified as a negligent breach of the duty of care owed by the professional to the client.

You may wonder, what is professional negligence called?

The negligence of a professional person is known as malpractice. 

For example, in the medical field, we refer to professional negligence as “medical malpractice”.

Professional Duty of Care

What is the professional duty of care?

“Duty of care” is a legal term referring to how individuals in society must behave to avoid causing harm to others and protect others from being hurt or injured.

For example, a driver owes other drivers the duty of care to ensure that he does not do excessive speeding, does not drive recklessly, and respects traffic laws.

If a person gets into a car accident because they failed at their duty of care, the driver could be legally considered negligent and liable to compensate for the damages caused.

The notion of duty of care applies to everyone in society.

On the other hand, “professional duty of care” is a similar concept but scoped specifically to professionals.

The “standard” or “duty” expected from a doctor, lawyer, therapist, nurse, or other professional is to ensure they provide their services with care, skill, knowledge, and in accordance with the standards adopted in their professional field.

For example, a dentist must handle and treat a patient in accordance with the best practices in the field, proper assessment of the patient’s condition, careful assessment of the treatment plan, and skillful execution of the professional work.

The professional must exercise reasonable care and be consistent with what other professionals would have done in the same circumstance.

Breach of Duty of Care

Breach of duty of care occurs when a professional fails to provide certain duties or obligations to a client.

A professional, no matter in what industry such as medical services, accounting, legal, IT, real estate, financial, or other, is expected to act in accordance with professional standards.

The professional owes a duty of care to its “client”.

As a result, if the professional breaches such duty and causes injury to its client, the client may hold the professional responsible for all the damages suffered.

For example, a lawyer may provide incorrect legal advice as they did not research the law prior to giving legal advice.

A doctor may not do the proper tests and misdiagnoses the patient’s illness.

An accountant does not act carefully and makes the wrong account calculations.

An IT professional does not implement industry-recognized standards and fails at securing the client’s computer network.

Damages

There must be damages for a professional to be held liable to compensate a client victim of losses or injuries.

In other words, the client must suffer losses to be entitled to get compensated for those losses.

For example, a doctor does not provide the proper treatment to a patient or makes a surgical error causing the client to incur further medical expenses and lose wages.

These are direct damages caused by the medical error and can be compensated.

Causation

Another important element of professional negligence is that the “negligence” must be the “cause” of the client’s damages.

For the law to recognize damages in a professional negligence case, the injuries must be directly linked (or caused) by the professional’s negligent conduct.

Otherwise, the law will not compensate for the alleged loss or damage.

Definition

How do you define professional negligence?

Professional negligence can be defined as follows:

As you can see here, you need the following components:

• A professional (someone with a specific training or specialized skill)
• A client (a person to whom the professional owes a duty)
• Damages (an act or conduct that causes harm to the client)

Elements

What are the elements to prove in a professional negligence case?

For the court to find a professional “negligent”, the plaintiff must prove:

• The professional owed the client a duty 
• The professional breached such duty by acting in a way that was foreseeably prejudicial to the client or failed to respect professional norms, codes, standards 
• The plaintiff suffered damages 
• The breach of duty causes the damages 

Although you’ll need to consider the requirements of the local laws, you can expect that the courts follow the foreseeability test or the multifactor test.

The foreseeability test is to assess whether it was foreseeable that the professional’s actions or omissions will lead to the client’s injuries.

If the answer is yes, then the professional may be considered negligent.

The multifactor test is when the court looks at a number of variables to see if the professional failed in its duty to the client.

The multifactor test will bring the court to assess:

• The client’s damages
• The conduct of the professional 
• Did the professional have other options
• What were the costs of choosing another option
• Were there other feasible or safe options

If the court finds that the professional could have acted in another way to expose the client to less risk, then the professional may be considered negligent.

Prevention 

How do you prevent professional negligence lawsuits or claims?

Every professional can take measures to mitigate the risk of exposure to claims of negligence.

Here are some tips or suggestions intended for professionals to limit their risk:

• Sign a contract with your client 
• Set realistic expectations with your client 
• Have constant and regular communications 
• Keep good records of your discussions and recommendations 
• Respond to your client in a timely fashion 
• Don’t offer advice in areas you are not qualified 
• Educate yourself on the latest industry best practices 
• Get clear instructions from your client 

By taking these measures, a professional can effectively mitigate risk as they can prove:

• What the client exposed to them
• What measures they took to assess the situation
• What the client was told or advised 
• What the client decided
• What measures were taken based on the decision 

Claims

Professional negligence claims can, unfortunately, be filed against any professional.

Some claims will not have any merit but others may lead to the courts recognizing conduct, act, or omission as professional “negligence”.

For a person to file a professional negligence claim, that person must have been a person to whom the professional owed a duty.

Typically, it’s the professional’s client or patient.

Professional negligence claims are intended to seek compensation from the professional for damages caused (financial damages and perhaps general damages).

There may be specific laws applicable in various industries governing the professional negligent claim procedures in most jurisdictions.

You must consult a personal injury lawyer, professional negligence attorney, or malpractice attorney to understand the legal requirements in filing a professional negligence claim or lawsuit.

You must also be mindful of the applicable statute of limitations.

To ensure your claim is not time-barred, as soon as you discover your injuries or damages, you should consult with a lawyer to see how long you have to file a claim.

Insurance

Are there insurance products that can protect professionals against professional negligence claims?

There are professional negligence insurance products that various insurance carriers may offer.

You can find Professional Liability Insurance (also called Errors and Omissions Insurance) providing professionals with protection against claims of professional negligence.

These insurance products are common in the business world as companies purchase such policies to protect themselves against possible lawsuits where a client alleges “negligence” in how they professionally handled a contract.

Professionals such as doctors, lawyers, accountants, or others subject to a professional code will typically be required to legally carry professional insurance.

If a professional is found to be liable for damages, the professional insurance policy may get triggered and issue a payout for any covered liability.

Example

Let’s look at an example of “professional negligence” so we can illustrate the concept better.

Let’s take the case of a doctor.

Example 1: Doctor 

A doctor is a person who is professionally trained to help patients diagnose their illnesses, provide the necessary treatment, and do the necessary follow-ups to ensure the illness has cured.

If the doctor does not diagnose the patient’s illness by requesting the proper tests or adhering to the recognized medical standards, that conduct may be considered as professional neglect.

Similarly, if the doctor fails at providing the proper treatment, prescribing the right drugs or at the right dosage, makes a mistake in the reading of the patient’s history, or other failures, causing the patient harm, that can be qualified as medical negligence or “professional” negligence.

Example 2: Lawyer

Another example of a professional that may be found negligent is a lawyer.

If a lawyer or attorney provides wrong legal advice to a client or does not provide a legal strategy consistent with the law, that conduct or advice may be considered professionally negligent advice.

The standard the law will use to evaluate the legal advice or strategy is to compare the attorney’s conduct in question with the conduct expected of a “reasonable attorney” in the same circumstances.

If there is a deviation in the attorney’s conduct and that of what is expected of a skillful and prudent lawyer in the same situation, then the lawyer may be found liable for damages.

Example 3: Financial Advisor

A financial adviser that does not provide the proper investment advice to clients, does not consider the client’s risk profile in investing, or provides wrong advice can be found to breach its professional duty of care.

If the poor investment advice and strategy caused the client damages, the advisor might be held liable to compensate for the financial losses.

Professional Negligence vs Ordinary Negligence 

What is the difference between professional negligence and ordinary negligence?

Professional negligence is when a professional provides a client with erroneous professional advice, incorrect professional service, or unreasonable professional conduct causing the client harm.

For example, a therapist is expected to provide the patient with therapy based on professional and industry standards.

If the therapist does not follow standard and reasonable protocol causing a patient’s injuries, the therapist may be held accountable. 

Ordinary negligence is when anyone in society causes another one harm leading to damages.

A person navigating a recreational boat has to ensure those on board, navigate on waters safely, and respect the navigation signs or rules.

If a boat accident happens due to a person’s ordinary negligence (distraction, text messaging, driving under the influence of alcohol, or other), the negligent individual will be held accountable to compensate for the damages caused to the victims of the boat accident.

Takeaways 

So what is the legal definition of Professional Negligence?

Let’s look at a summary of our findings.

Professional Negligence:

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