When pursuing a case against a professional such as a lawyer, doctor, accountant, or an architect for unprofessional conduct in a case involving a service you paid them to provide, you may come across the terms professional negligence and malpractice and wonder if the two are the same.
Professional negligence and malpractice are primarily the same and are often used interchangeably. However, there may be a slight difference between the two terms depending on the professional, with the intent being the main difference between the two.
For example, if an accountant makes an unintended mistake that results in losses to a client, they can be said to be negligent. However, if the same mistake is made with an intent to defraud or cause their client to suffer a loss, they can be said to have engaged in malpractice. Under normal circumstances, intentional malpractice can attract civil and criminal prosecution.
Proving Professional Negligence and Malpractice
Sometimes malpractice doesn’t have to involve intentional harm; it could include being aware of potential risks but failing to follow the proper protocol resulting in an accident.
To win professional negligence or malpractice lawsuits, the following conditions of negligence must exist: a relationship between the defendant in which they owe you a duty of care, a defendant’s breach of this duty, their failure to uphold their duty caused a specific outcome, and, the outcome resulted in harm or loss.
Standard of Care
Professionals owe their clients a standard of care for the services a client pays them to offer. The standard of care refers to what a prudent, reasonable person of the same profession would provide under the same circumstances.
For example, a doctor can make a few errors. However, the client expects that a doctor knows the basic principles needed for diagnosing and treating conditions they have a license to handle. In the case of a doctor, a duty of care is established when the doctor sees the patient and prescribes a treatment regime, and the patient pays for their services.
If a doctor fails to meet the standard of care expected of their profession,[1] , they breach their duty of care. But a breach of care is not sufficient grounds for professional negligence and malpractice. If no harm results from the breach of care, the professional may be off the hook.
When the Breach of Care Causes Harm
Unfortunately, most instances of breach of care cause outcomes harmful to clients. A doctor who breaches their duty of care could result in injuries to clients. A lawyer who breaches their duty of care could have a client lose a case, which could mean a loss of revenue. Both circumstances would constitute professional negligence or malpractice.
“If the conduct in question was intentional, for example, a lawyer intentionally leaving out information that is critical in a case with the intent to have the client lose, they could also face other consequences such as practice license withdrawal,” says malpractice attorney Arren Waldrep.
For unintended mistakes, the defendant may only need to make restitution for damages suffered by the claimant, which could include economic and non-economic damages.
