 |
Legal Malpractice
Malpractice is defined as negligence on the part of a member of a profession. Legal malpractice concerns the negligence of a lawyer or legal professional. Legal malpractice is the failure to provide the quality and kind of service that another lawyer or legal professional would provide under the same circumstances and consistent with generally accepted standards of legal representation. In all likelihood, if you believe you may have a malpractice claim, you may lack the background to properly evaluate the level of legal services which you have received, and whether or not legal malpractice has actually occurred and/or justifies pursuit of a lawsuit to recover damages. You may want to use the following guidelines as you consider whether to pursue evaluation of your case.
The Board of Professional Responsibility for the State of Tennessee aids the Tennessee Supreme Court in supervising the ethical conduct of attorneys. The BPR offers a Consumer Assistance Program and the opportunity to file formal complaints. More information is available at www.tbpr.org or by calling 800-486-5714.
As soon as you realize that you may have a potential malpractice claim, you should promptly consult with an attorney so that your claim can be investigated and evaluated to determine whether it has merit. During the investigation or evaluation of your malpractice claim, your attorney will need to obtain and review the legal records in question. You will probably be asked to sign written authorizations for the release of these records. Your attorney might also need to retain the services of an expert witness to assist him in the review and evaluation of your malpractice claim.
After fully investigating and evaluating your malpractice claim, the attorney will advise you whether or not your claim is one which you should pursue. If the attorney believes that your claim should be pursued, the attorney may agree to represent you in a malpractice lawsuit on a contingency fee basis. In a contingency agreement, the attorney accepts as a fee a percentage of any financial recovery which you may receive either by settlement or by court judgment. The attorney may also agree to represent you in a malpractice lawsuit on an hourly fee basis. In an hourly fee basis, the attorney will charge a set hourly rate for his or her work. Additionally, you should expect to be asked to advance money which the attorney will hold in a special bank account on your behalf and out of which the attorney will pay for necessary expenses such as investigators, expert witnesses, costs in obtaining copies of records, and other types of out-of pocket expenses. You should discuss these matters with your attorney at the beginning of your attorney/client relationship so that you clearly understand the terms of your agreement. Your attorney should prepare and both of you should sign a contract of representation which confirms the terms and conditions of your representation and your fee agreement.
There are time limits for the filing of malpractice lawsuits. Your attorney will be able to advise you about these rather complex time limitations and any exceptions to them. Malpractice lawsuits should never be filed frivolously, or to avoid an honest debt for professional services. You should be aware that a less than ideal result does not necessarily mean that legal malpractice has occurred. Indeed, you may have obtained the best possible result under the circumstances of your case or, despite the result, the services rendered may have been reasonable or within the generally accepted standards of legal representation.
As a general rule, it is a good practice to seek legal advice immediately after you suspect that you may have been a victim of professional malpractice. Although malpractice cases can be complicated, an attorney can assist you in determining whether you have a valid claim.
Medical Malpractice
Malpractice is defined as negligence on the part of a member of a profession. Medical malpractice concerns the negligence of a doctor or medical professional. Medical malpractice is the failure to provide the quality and kind of service that another doctor or medical professional would provide under the same circumstances and consistent with generally accepted standards of medical care in the same or similar medical community. In all likelihood, if you believe you may have a malpractice claim, you may lack the background to properly evaluate the medical services which you have received and whether or not medical malpractice has actually occurred and/or justifies pursuit of a lawsuit to recover damages; however, you may want to consider use the following guidelines as you consider whether to pursue evaluation of your case.You may want to use the following guidelines as you consider whether to pursue evaluation of your case.
It is important to remember that a bad or unfavorable outcome does not necessarily mean malpractice has occurred. Risks are inherent in the practice of medicine, and sometimes things go wrong which are not considered malpractice. One example of this is infection, including MRSA infections, which occur after a hospitalization or surgical event. You may wish to review the information provided at the time of surgery which often lists possible complications of the surgery or procedure. With the exception of gross negligence, the occurrence of a listed possible complication is often not considered to be malpractice.
As soon as you realize that you may have a potential malpractice claim, you should promptly consult with an attorney so that your claim can be investigated and evaluated to determine whether it has merit. The statute of limitations, or time in which you have to make a claim, can be as short as one year from the date you knew or had reason to know of the negligence. During the investigation or evaluation of your malpractice claim, your attorney will need to obtain and review the medical records in question. You will probably be asked to obtain these records from your medical providers and/or sign written authorization for the release of these records. Your attorney will also need to retain the services of an expert witness to assist him in the review and evaluation of your malpractice claim.
After fully investigating and evaluating your malpractice claim, the attorney will advise you whether or not your claim is one which you should pursue. An important factor in this decision is the extent and permanency of your damages. A malpractice case is a difficult and expensive endeavor, and if the damages are not significant, it may not be advisable to proceed. Sometimes this is a difficult opinion for an attorney to give a client. If an attorney declines your case without providing a clear reason, you may wish to directly ask if it is because of insufficient damages to sustain justify pursuit of the case.
If the attorney believes that your claim should be pursued, the attorney will most often agree to represent you in a malpractice lawsuit on a contingency fee basis. In a contingency agreement, the attorney accepts as a fee a percentage of any financial recovery which you may receive either by settlement or by court judgment. Additionally, you should expect to be asked to advance money which the attorney will hold in a special bank account on your behalf and out of which the attorney will pay for necessary expenses such as investigators, expert witnesses, costs in obtaining copies of records, and other types of out-of pocket expenses. You should discuss these matters with your attorney at the beginning of your attorney/client relationship so that you clearly understand the terms of your agreement. Your attorney should prepare and both of you should sign a contract of legal representation which confirms the terms and conditions of your representation and your fee agreement.
There are time limits for the filing of malpractice lawsuits. There are also specific requirements for giving notice to medical malpractice defendants. Your attorney will be able to advise you about these rather complex time and notice requirements. Malpractice lawsuits should never be filed frivolously, or to avoid an honest debt for professional services. You should be aware that a less than ideal result does not necessarily mean that medical malpractice has occurred. Therefore, an injury alone does not create a presumption of a doctor's negligence. A medical professional is not negligent merely because of an unsuccessful result or error in judgment. However, an error in judgment is negligence if due to a failure to have or use the required knowledge, care and skills required under the applicable standards of medical care. Indeed, you may have obtained the best possible result under the circumstances of your case or, despite the result, the services or treatment rendered may have been reasonable or within the standard of care accepted within the medical community.
As a general rule, it is a good practice to seek legal advice immediately after you suspect that you may have been a victim of professional malpractice. Although malpractice cases can be complicated, an attorney can assist you in determining whether you have a valid claim.
PLEASE NOTE:
The materials contained in LAWLINE ONLINE are intended to, and do, provide only a broad overview of various legal topics. The general information contained in this material is not designed nor intended to be a substitute for legal advice on a specific legal issue or question. In addition, the information provided in this material is only general advice and may not be applicable to apparent similar individual problems, since only slight changes in facts change the applicable advice. If you have a legal problem or question, please consult an attorney.
Any publication, distribution, or other use of these materials without the express written consent of the Knoxville Bar Association is prohibited.
Download a PDF version.