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| Leading Illinois Personal Injury Law: Medical & Professional Malpractice Attorneys |
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A legal malpractice lawsuit generally has four elements: duty, breach, injury, and proximate causation. A judge or jury examines all four elements in a legal malpractice trial, and if any element is missing, the plaintiff cannot recover.
Duty
The duty a lawyer owes his or her client has two components. The lawyer must exercise the legal skill that a competent attorney would exercise, and must meet all of his or her fiduciary obligations to the client. Fiduciary obligations include a duty of undivided loyalty to the client's interests and confidentiality. No lawyer is expected to know the law so well that he or she can give perfect answers to obscure legal questions. Lawyers are expected to know how to research issues and to recognize their limits when they reach an unsettled or unclear area of law.
Breach
A lawyer commits a breach if he or she fails to do his or her duty. Breach is frequently the toughest element to prove in a legal malpractice lawsuit, because a lawyer can make mistakes and still not commit a breach. Law is an inexact science. Even competent lawyers frequently disagree on the best course of action in a particular legal matter. Sometimes, the strategy chosen is a combination of knowledge about the law and how the lawyer thinks a judge or jury will react to the facts of a case. A client may be able to show that another lawyer would have pursued a different strategy, and still the client may be unable to show that the first lawyer committed a breach.
Injury
A plaintiff must show that he or she was injured by the lawyer's breach of duty. For example, a lawyer might miss a deadline, but if he or she is subsequently granted an extension, the client is not injured. If missing the deadline bars the plaintiff's claim, however, he or she has been injured. A lawyer might forget to assert a claim, but if the claim would have been denied anyway, the client has not been injured. Usually a plaintiff only recovers direct economic losses, such as the money needed to pay another attorney to re-do legal work, any fees or penalties paid, or any interest income lost, because of an attorney's malpractice. It is difficult, although not impossible, to recover for speculative losses, that is, for what might have happened if a different lawyer had been hired, emotional losses, or legal expenses incurred hiring a new lawyer to sue the previous lawyer.
Proximate Cause
Finally, the client must show that the breach was the proximate cause of the plaintiff's injury. Proximate cause is a thorny legal concept that essentially asks whether the breach was sufficiently responsible for the injury so that the lawyer should be held responsible. Proximate cause is easiest to prove if a lawyer misses a deadline or gives advice that is clearly wrong. In these cases, the client usually can show exactly what would have happened had the lawyer met the deadline or given correct advice. Proximate cause is more difficult to show in cases in which a lawyer pursues a course of action in trial that works to the client's disadvantage. In this case, the client has to show what the judge or jury would have done had the lawyer chosen another strategy. This can be difficult to show. The client needs to prove, to the judge or jury's satisfaction, what another lawyer would have done, and how the jury in the underlying case would have reacted to that strategy. The first lawyer might argue successfully that even if a different strategy had been pursued, the outcome of the case would have been the same.
Attorneys who try legal malpractice cases have had increasing success recently with new theories of liability for legal malpractice. One trend focuses on attorney investments and financial dealings. Courts have found that a lawyer breached a fiduciary duty to a client by failing to reveal stock ownership in an opposing corporate party, or by using insider information learned about the client to make profits in the stock market. Another growing trend is for the court to allow claims brought against lawyers by persons other than clients. For example, the beneficiaries under a client's will might bring a legal malpractice action against a lawyer who incorrectly drafted a deceased client's will if the beneficiaries are dissatisfied with their share of the estate. Depositors in a failed savings and loan company might sue lawyers who gave advice to the savings and loan.
Elements of Medical Malpractice
A medical malpractice lawsuit -- like a legal malpractice action -- generally has four elements: duty, breach, injury, and proximate causation. A judge or jury examines all four elements in a medical malpractice trial, and if any element is missing, the plaintiff cannot recover.
There are many complex questions in deciding what testimony to allow. In every case, the judge must decide whether a doctor's actions are to be judged against all other doctors or only against doctors specializing in a particular type of practice. Some judges may allow evidence of what other doctors in the same region would do, while some judges allow testimony about what doctors in other parts of the country would have done. Success in a medical malpractice case frequently depends on how a judge answers these questions.
Third-Party Lawsuits
Third persons can sometimes bring medical malpractice lawsuits against doctors. For example, a person who gets an infectious disease from a friend might sue the friend's doctor for inadequately treating the disease. A person injured in an automobile accident might bring a medical malpractice lawsuit against the driver's doctor if the doctor medicated the patient without telling the patient not to operate a vehicle while under the effect of the medication.
Consent Forms
Consent forms required by most doctors and hospitals typically include warnings that patients must assume all the risks of any surgical procedures. By signing one of these forms, a patient does not give up all rights to sue if things go wrong. Such an agreement may not be valid if a doctor does not fully inform the patient of risks associated with a particular procedure. Even a valid consent form is no protection for a doctor who either performs surgery that goes beyond the consent given or who fails to perform a procedure according to well-accepted medical standards.
Illinois State Bar Association, Illinois Bar Center, 424 South Second Street, Springfield, IL 62701, phone: (217) 525-1760.
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