Malpractice Versus Professional Misconduct: Understanding The Difference

While they are related in certain respects, malpractice and professional misconduct allegations often have very different implications. While malpractice allegations present the risk of civil liability, allegations of professional misconduct don’t justify legal action in all cases. At the same time, egregious cases of professional misconduct can trigger criminal culpability in some scenarios—such as when a doctor sexually assaults a patient. Thus, all allegations of malpractice and professional misconduct require a careful risk assessment and a strategic plan of action.

Understanding the Definition and Implications of Malpractice

Malpractice involves a professional’s failure to meet the requisite duty of care in his or her profession. Malpractice actions are based on the law of negligence; and, generally speaking, there are four elements that plaintiffs must prove in order to substantiate their claims:

• The professional owed a duty of care to the plaintiff (i.e., in a doctor-patient or attorney-client relationship);
• The professional breached his or her duty of care;
• The plaintiff suffered harm; and,
• The professional’s breach was the cause of the plaintiff’s harm.

In malpractice cases, the question of whether the professional breached his or her duty of care often takes center stage. The duties that professionals owe can vary based on their profession, geographic location and other factors. In many cases, it will be far from clear that the plaintiff’s allegations warrant legal action, and challenging the plaintiff’s evidence of the alleged breach will often be a key defense strategy.

Patients, clients and other plaintiffs can file civil claims for malpractice. Typically, these claims are covered by professionals’ insurance policies, and most claims are resolved out of court. In some cases, malpractice allegations will trigger professional licensing action as well (and professionals often have a duty to report malpractice allegations to their licensing authority).

Understanding the Definition and Implications of Professional Misconduct  

While professional misconduct can involve negligence, this isn’t necessarily the case. Professional misconduct complaints can fall short of alleging negligence, or they can allege much more. With this in mind, depending on the circumstances, the potential implications of professional misconduct allegations can include:

• Professional Disciplinary Action – Regardless of whether professional misconduct rises to the level of negligence, it may warrant disciplinary action by the professional’s licensing authority. This disciplinary action could range from a reprimand to permanent license revocation.
• Civil Litigation Based on Negligence – If professional misconduct constitutes negligence, then the patient or client can file a civil lawsuit seeking damages.
• Criminal Prosecution – If alleged professional misconduct rises to the level of a criminal offense, then a patient’s or client’s allegations could lead to prosecution. While this is relatively rare, it can be a very real concern in egregious cases.

Contact the Professional Liability Defense Lawyers at Rendigs

The professional liability defense lawyers at Rendigs represent doctors, lawyers and other professionals in disciplinary and civil litigation matters. If you need to know more about the risks of facing malpractice or professional misconduct allegations, we invite you to call 513-381-9200 or contact us online to arrange a confidential initial consultation.