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Malpractice

Posted on:1/27/2012
Malpractice, whether in education, medicine, law, or another enterprise, is a specialized form of negligence arising out of a professional practice. The basic claim in a malpractice case is that a professional has caused harm by failing in the duty to competently provide services as per the standards of the profession.


 

Because malpractice is a category of negligence, all four elements of negligence must be proven. Thus, in medicine, the profession whose malpractice litigation has been the most widely publicized, successful suits do not arise simply out of undesirable results or even mistakes in medical treatment. A finding of medical malpractice requires proof that a doctor had a professional duty to treat a patient in a certain manner; that the doctor failed to live up to that duty, thus placing the patient at unreasonable risk of injury; and that the failure of performance was the legal cause of actual injury.

 

In education, two types of malpractice claims have been brought. The first type, brought by pupils who have failed to learn (usually to read), alleges a breach of duty in the provision of an instructional program. The argument is that from the student's failure to learn and from facts relating to the education given the student, a failure to teach properly can be inferred. Sometimes, plaintiffs also make the related claim that the school was negligent in certifying learning that did not in fact take place—either by assigning passing grades or granting a diploma. A second type of malpractice case alleges the provision of an inappropriate education or other harm as a result of a failure to properly assess or classify.


  
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