Professional Liability

Professional liability is an umbrella term to describe negligence lawsuits against professionals: such as lawyers, accountants, engineers, clergy, doctors, and nurses. While the Cook County Jury Verdict Reporter has reported cases under the label Financial Malpractice even when the cases themselves involved breach of contract or breach of fiduciary duty, more commonly “malpractice” is the term that describes professional liability actions: legal malpractice, accounting malpractice, medical malpractice, etc.

The different subject matters are unique. Many lawyers experienced in legal malpractice actions are not as experienced in medical malpractice actions. A medical malpractice lawyer must be familiar with the practice of medicine and medical literature. When Mr. Patterson was defending doctors against claims of medical malpractice (many years ago now), he read textbooks on gastric bypass surgery and shoulder dystocia, among other things, and at times knew things that some doctors did not. Every two weeks, the firm would send a lawyer to a medical library to research relevant articles. Now, such research can be conducted online.

Legal malpractice actions represent a substantial portion of the firm’s practice. And the firm is unique in that it will represent a plaintiff against a lawyer or law firm. Many law firms will not represent a plaintiff against another lawyer. Other lawyers avoid these kinds of lawsuits because they are complicated and expensive. They are complicated because, at least with litigation matters, the plaintiff must prove a case within a case. To take a simple example, suppose the plaintiff was injured in an automobile accident at which the other driver was at fault. Then suppose that the plaintiff hired a lawyer to sue the other driver, the one who caused the accident. Then suppose that the lawyer hired forgot to file the case on time, such that it was barred by the statute of limitations, and the case was lost. Failing to file a lawsuit on time is often malpractice. So the plaintiff then hires a malpractice lawyer to sue his initial lawyer for negligence. In the malpractice case, the plaintiff will have to show that the lawyer was negligent in failing to file the case on time and that if he or she had filed the case on time, it would have been won. This means that the lawyer you originally hired and have now sued might be arguing that you caused the accident, that if he or she had filed the case, it would have been lost. Your former lawyer is now working against you. The automobile accident claim is now the case within the (legal malpractice) case. You must win both cases in one.

Accounting malpractice cases don’t involve a case within a case except where, for example, IRS litigation was lost or not initiated, but the issues can be equally complex. A lawyer handling such cases generally must be familiar with the standards that govern Certified Public Accountants. There are ethical requirements of competence, diligence, due care, and loyalty. To sue an accountant, another accountant will need to provide expert testimony regarding the defendant’s failure to comply with the standards of the profession. The standard accounting malpractice case could arise after a transaction closes, when an anticipated deduction turns out to be unavailable solely because the transaction wasn’t structured correctly pursuant to IRS guidelines, as long as it could have been structured correctly (that is, that both sides would have agreed to it). Sometimes such mistakes can be fixed by a supplemental or modified agreement; but if it can’t be fixed, a claim should be made to the accountants who made the error. Accountants performing audits of public companies have duties to both their clients, the public companies, and to investors.

Engineering malpractice actions have similar elements: they owe a duty to their clients of competence, due care, and diligence. If they breach that duty causing losses (money damages), they can be sued and forced to compensate for the losses. Interesting legal questions can arise in trying to determine whether an engineer, architect, contractor, or subcontractor was responsible for defective construction.

If you have read this far, you will see the similar patterns among malpractice actions notwithstanding a huge variety of fact patterns. Each professional has a duty to clients or intended beneficiaries to adhere to the standards of the profession; a breach of that duty causing damages can be the subject of a claim of malpractice. Expert testimony will be required. A lawyer’s thorough knowledge of the subject matter of the services provided will help you obtain a favorable result.

We have outlined the most frequent types of cases we have handled but you should understand that these principles generally apply to any professional: an architect, a nurse, a doctor, a financial advisor, brokers of various types, and clergy. If you feel that you have been a victim of wrongdoing by any professional, you should consult a lawyer to understand your rights and potential remedies.

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