A professional’s work will involve high standards of care that they must observe throughout. These standards ensure clients receive safe and effective services under their care or supervision. Subsequently, if an aggrieved party suffers harm under a professional’s care, you can seek legal redress under tort law.

Specifically, you will likely seek redress under malpractice claims because the professional will be held to a higher standard of care. After you or a loved one suffers harm, you want to contact a trusted personal injury attorney who will guide you on the best strategies to raise legal issues. The attorney should understand the facts of the case and provide workable solutions to help you recover from the damages you suffered.

The Personal Injury Attorney Law Firm provides the best services for any aggrieved party seeking legal redress. Over the years, we have helped hundreds of victims who suffered personal injuries due to a professional’s malpractice. Thanks to the experience and skills built over time, you can trust our team to deliver reliable and professional services. Moreover, you can always consult us on your case, and we will provide tailor-made solutions.

The Importance of Distinguishing Between Negligence and Malpractice

The law of torts provides remedies for persons facing personal injury, but the court litigation system can be complicated. The situation often arises because you need to prove multiple elements of negligence before the court can find your case persuasive on a balance of probabilities.

Hence, if you are unsure about the difference between negligence and malpractice, your case may incorporate points that do not necessarily help towards a favorable outcome. Therefore, you want to research beforehand or request legal assistance from your attorney. This way, you can better draft your claims.

Negligence Versus Malpractice

  1. Negligence

Negligence is the general tort or civil wrong you seek compensation for after facing personal injury. Since it covers a broad range of actions, you must specify the type of harm you suffered and under which scope you suffered.

Every reasonable person has a duty of care to act accordingly, and a duty of care exists to prevent unnecessary carelessness or harm in society. However, the duty of care does not apply equally to all people. For example, children who act out of character may be held to a different standard of care compared to properly reasoning adults.

Negligence is a general approach towards seeking redress for a civil wrong you faced. Anyone can be a defendant in a negligence claim, as long as you can prove that they failed to provide the expected duty of care in their actions, causing challenges for you.

  1. Malpractice

Malpractice is an advanced form of negligence that focuses on the wrongful actions of a certified professional. Most cases arise from medical malpractice because of the significantly higher direct interactions between doctors and their patients. Nevertheless, malpractice claims may be brought against professionals like lawyers, psychiatrists, and surgeons.

Differences Between Negligence and Malpractice

The main difference between negligence and malpractice claims is that under negligence, anyone can be a defendant, while in malpractice, you can only file a claim against a trained professional.

In a negligence claim, the respondent is liable for an accidental causation of harm, which means they did not foresee the consequences of their actions. The respondent may have acted in a hurry, causing them to overlook some important factors. However, a malpractice claim involves a party who acted while aware of the potential harm they would cause. For example, if a doctor undertakes duties while drunk, they know of the possible harm they may cause but still proceed.

The unmet expectations in a negligence claim differ from those in a malpractice lawsuit. Under a medical negligence claim, one is liable for failure to meet the general duty of care discussed below. It entails operating from a reasonable person’s point of view and meeting the set expectations. Malpractice claims deal with the lack of application of professional standards of care, which are higher than a regular reasonable person’s standard.

Another difference applies in terms of consequences for action within the professional system. Under medical negligence, a professional will receive directives to review their case and submit a report about how to prevent the same mistakes from occurring, on top of a restitution order. Conversely, malpractice involves a disciplinary hearing and potential termination from employment due to the severity of the offense.

While the legal consequences of a medical negligence claim attract civil liability, the outcome in malpractice cases can extend to criminal liability. The consequence arises because of the element of intent present in a medical malpractice claim, meaning there may be predetermined action.

Elements of Negligence

Based on the strict nature of negligence laws, your injury attorney must prove that you suffered significant harm. As a result, the law of torts introduces elements of negligence that a claimant must prove before the court can award any compensatory sum. You should present enough evidence for each element to establish a link between the respondent's actions and the harm done to you.

The following are the elements of negligence that your attorney should help you establish:

Duty of Care

The existence of a duty of care is the primary step toward presenting a negligence claim. The imposed duty of care forms the basis for any subsequent actions against an individual in a negligence suit, as they are legally responsible for acting reasonably.

Therefore, you must demonstrate that a person owes you a duty of care.  On the one hand, you can use the general "reasonable man" standard, which requires everybody to act as a reasonable man would. The standard implies acting in a socially and legally acceptable way to prevent causing harm to other people.

Introducing this standard to the actions of your alleged defendant requires you to show the prevailing norm or law applicable in a specific field. For example, every person is entitled to the highest quality of health care available, including emergency treatment when needed. Thus, medical caregivers should not neglect their duty to provide medical services when approaching their health facility. They ought to operate as the law requires to ensure you receive the best possible services.

Similarly, a duty of care can arise from the generally expected conduct of reasonable people. This implies that a law does not necessarily have to exist for you to hold a person accountable for a duty of care. If you can demonstrate that any reasonable person would use a minimum standard to act, you can persuade the court to hold the defendant in your case accountable.

Hence, your injury attorney can rely on the evidence to help you present your case. For example, they can present the specific provisions in the law that require someone to act using a minimum duty of care standard. They can also use previously decided cases with similar facts to your case further to demonstrate the existence of a duty of care.

Breach of Duty

Second, you must demonstrate how the party who owed you a duty of care breached it by failing to act appropriately. In the case of a professional, you want to demonstrate that they did not meet the professional threshold set for them, resulting in a breach. The minimum requirements necessary at this stage of your lawsuit are to establish that the party who allegedly breached the duty of care did so without regard to their legal responsibilities.

To demonstrate this, you can use evidence of their actions from the sources that your injury attorney helps you source. For example, if you have witnesses who can testify about the poor quality services you received from a doctor or any other professional who ought to provide the best services possible, you can use their testimonies to demonstrate your case.

Additionally, you can present documentary evidence or provide surveillance footage, if available, to demonstrate further how the breach occurred. You can use documentary evidence to demonstrate the existence of corruption, embezzlement, or negligence in recording your details contrary to the minimum standards required under a duty of care.

For example, if your doctor recorded wrong symptoms and diagnostic notes during your consultation, you can use the documents as notes. You should provide original documents in court as they provide more credibility. Notably, they should also have the signatures or certifications needed to demonstrate that they are legitimate documents, as any substandard source of proof may lower the quality of your argument.

The same standard applies to footage evidence, which requires you to source original video files and certify that you have not interfered with them. The court may request a certification that the footage is ethically obtained to prevent the admission of potentially illegally obtained evidence. As a result, your personal injury lawyer will advise you on the most effective evidence to present in court.

Causation of Harm

Upon establishing a breach of duty, your attorney will demonstrate the cause of harm. Establishing this step is essential because it helps demonstrate that the defendant in the case was the primary cause of his harm or injuries. Understanding the causation chain is essential to creating the link to validate your claims, so you must spend enough time working it out.

Typically, many negligence cases involve a single causation factor, meaning that only one party can have a direct link to the harmful effects you face. For example, if a doctor makes a wrong diagnosis, you must prove their actions are the primary causation factor. Doing so often requires you to demonstrate that you would likely escape the wrongful effects if the breach of duty had not occurred.

Conversely, your case may involve multiple causation factors due to a chain of events. In the preceding example, your doctor may have made an incorrect diagnosis due to inaccurate lab results from technicians. As a result, both parties may be liable for compensation, provided you prove that the chain of causation is relevant.

Damages Arising From the Harm

Lastly, you want to discuss the specific damages or harm you suffered to justify the compensatory amount you will be asking from the court. Damages can be directly or indirectly related to the actual negligent action that occurred. However, the court will hold you to a higher standard of proof for indirect damages claims to ensure no court process misuse or abuse.

As a claimant, you want to present the most credible evidence to demonstrate that your claims of suffering or damages are legitimate. Hence, you can present medical records, police reports, or even photo and video footage to demonstrate the type and significance of harm you suffered.

Further, you can call witnesses to testify about your current situation as additional evidence. If all sources are persuasive and legitimate, the judge will more likely affirm your position and award damages. The quality of evidence you obtain should be high, as it also prevents the defendants from introducing details that undermine your sources.

What Malpractice Entails

 As discussed, negligence applies broadly to a different range of actions. It also affects every person, provided their actions fit the reasonable standard test while malpractice targets professionals who neglect their duty of care. As a person looking to file a lawsuit against malpractice, you want a proper understanding of the offense, including examples.

It is, therefore, essential to have illustrations comparable to your current case, as it can provide emphasis and justification for your matter. Some examples of malpractices include:

  • Providing Unlawful Legal Advice.
  • Issuing a Wrong Diagnosis.
  • Operating on the Wrong Body Site.
  • Issuing a Wrong Dosage.
  • Forging Legal Documents For Your Client.
  • Committing Sexual Abuse to Your Client.
  • Attending Work While Under the Influence of Drugs or Alcohol.
  • Leaving Equipment Inside a Patient’s Body After Surgery.

Filing a Malpractice  Suit

After identifying the party that owed you a professional duty of care, you will consult your personal injury attorney to help you prepare your lawsuit drafting. Usually, compensatory malpractice suits require you to identify the specific breach the professionals engaged in. In doing so, you aim to demonstrate that they did not uphold the high professional standard by which their duty of care applies.

Although filing a malpractice suit may seem straightforward compared to negligence, obtaining evidence in support of your claims often becomes challenging compared to a negligence lawsuit. The primary reason is that you may be unfamiliar with the professional standard of care in a specific field. As a result, you will need to obtain expert opinion evidence from another party practicing in the same field.

Finding a professional willing to testify to the detriment of a potential colleague is often tricky, as the career interactions may become strained after the trial. Your access to evidence also becomes challenging unless your injury attorney has other contacts who can provide the same quality of evidence.

Overall, a malpractice lawsuit should also encompass all the discussed elements of negligence, and the quality of evidence should be higher than the average case. The two approaches in seeking compensation are complementary, despite differences in your focus areas. By upholding these expectations, you increase your chances of a favorable case outcome against the defendants.

Types of Compensation Available for Aggrieved Parties

After you present your case and the defense counters the claims, the judge must issue a judgment. Their decision is based on the evidential quality from both sides, specifically whether you were able to establish all elements of negligence. Further, the judge weighs the case facts on a balance of probabilities to establish whether your claims have credibility and, if so, determine the type of compensation you should be entitled to.

The following are valid compensatory claims to present:

Recovery For Medical Bills

After suffering a personal injury, you will need urgent medical care to prevent you from suffering irreversible health damage. After consulting your doctor, your medical bills may pile up to accommodate the possible tests and medication you will receive. Further, if your case involves serious harm, you may need to undergo in-patient treatment, resulting in extra costs.

When presenting the accumulated medical bills that warrant compensation, ensure you present original doctors’ reports, receipts, and other records for credibility. You can also call on your doctor to provide testimonial evidence on the extent of the harm you suffered and the subsequent treatment you received.

Compensation for Legal Fees Spent

Additionally, you can seek compensation for the legal fees you used if you filed a malpractice claim against your attorney. The claim is valid because their services will not have given you access to quality legal services, despite paying a retainer fee.

Hence, you can work with your current attorney to recover any previously paid attorney retainer fees. The judge may also include punitive fees to the attorney for wrongful advice or action, and a disciplinary committee may step in to take further action beyond court interventions.

Loss of Wages and Earning Capacity

Some personal injuries can reduce your overall health, including your mobility and subsequent ability to earn a living. For example, after undergoing amputation, you need time to recover before returning to work. Sometimes, you will also lose your workplace because your capacity will change. As a result, you require compensation to continue supporting yourself and your loved ones despite the reduced access to resources.

Loss of Consortium in Cases of Death

Fatalities can also arise after negligence or malpractice, warranting the need for compensation for loss of consortium for the deceased loved ones. The claim's validity rests in the reality that you cannot receive the support, company, and family-based care you had after the deceased suffered harm.

Contact a Los Angeles Personal Injury Attorney Near Me

Unforeseen circumstances may leave you as a personal injury victim under malpractice. If so, you must seek compensation for the harm and inconveniences you suffer to help you rebuild your life. The best approach is partnering with an experienced personal injury attorney who understands the nature of compensatory suits. Their experience in the field will also help you identify the issues to look out for and the case potential you have toward a favorable outcome.

At The Personal Injury Attorney Law Firm, you can expect high-quality services from a skilled team ready to assess your case soon after you contact us. Our goal is to help aggrieved parties in Los Angeles, California, recover from the losses and rebuild their lives after suffering significant harm under the care of a professional.

Notably, malpractice and negligence cases require your attorney to undertake thorough research for compelling case preparation. You can access valuable legal services customized to meet your needs with the team. For more information on the difference between negligence and malpractice cases, call us today at 800-492-6718.