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Professional Negligence: Stories (And Advice) From My Case Files

by Dana Brooks Cooper

When people hear the word “malpractice,” it typically conjures an image of greedy trial lawyers filing frivolous lawsuits trying to collect on bogus claims and put good doctors out of business.  Nothing could be further from the truth, but my experience in selecting juries tells me most people don’t know that.  The truth is, even with the removal of caps on damages, malpractice is still a small and dwindling area of practice.

Although most people associate malpractice with doctors, it actually involves any type of professional negligence. It includes real estate professionals, accountants, mental health providers, architects, and yes, lawyers.  Some attorneys are uncomfortable suing other professionals.  For others, it’s just too darn difficult and expensive an area of practice.

The focus of my law practice has been the prosecution of professional negligence.  Again, mostly doctors, but not always.  I once prosecuted a clinical psychologist who was hired by my client to help him keep together his 25-year marriage to the mother of his three children.  Instead, that counselor married my client’s wife, moved into my client’s home, and enjoyed the financial rewards my client had worked so hard for most of his adult life.  And guess what?  I actually had to take that case to trial!  Not because we wouldn’t accept the offers from the doctor’s insurance company – there weren’t any.  As obvious as the negligence was (and our jury certainly agreed), that insurance company believed they could hoodwink six strangers on a jury into thinking this was somehow acceptable behavior from a man who held himself out as helping people during their most vulnerable times.

That was years ago, but to this day, that is the case I am asked most about because people have such difficulty understanding why the doctor (actually, his insurance company) would put himself through the disgrace of losing at trial when he could have quietly settled and avoided all public scrutiny.  My peers ask me about it because they can only imagine what it’s like to litigate a case for two or three years without any assurance of ever getting our costs back, much less one dime for all the time we spent working on the case.  You have to remember that unlike suing someone for other forms of negligence, when you accuse someone of professional negligence, it cuts to the core of who they are.  They see it as essentially calling them incompetent, although in reality, it’s nothing more than saying you fell below the acceptable standard of care in this instance and caused serious injury to someone.  This lawsuit is to hold you accountable for that.  Still, it’s perceived as declaring war and responded to as such.

In my example above, at least the marriage counselor had plenty of malpractice insurance to cover his negligence.  That’s not often the case with lawyers and some other professionals.  Like doctors, lawyers don’t have to carry malpractice insurance in Florida.  But unlike doctors, lawyers are not required to have an ability to satisfy up to a $250,000 judgment against them in order to maintain their licenses to practice.

The good news is that unlike doctors, who go to the mattresses when they’re sued, lawyers, accountants, architects and other non-medical professionals tend to look at the allegations against them and if they have merit, they try to resolve the case quickly, without the need for a lawsuit.  Usually that’s a good thing. Unfortunately, many of the lawyers who find themselves on the receiving end of a Bar Complaint or a lawsuit for malpractice don’t have malpractice insurance or the collectible assets to pay for the damage they’ve caused.

I once represented a couple against an attorney who, for a negligible fee, took on a property case which was well outside his area of practice.  He made a mess of everything and inadvertently transferred property rights to the wrong person.  After the couple hired attorneys to have the situation corrected, they came to me to collect against the original attorney for his costly mistake.  Unfortunately, that was difficult because he did not carry malpractice coverage.

Most people don’t think to ask the professionals they’re hiring if they have malpractice coverage or an ability to pay for the harm they could cause through their negligence.  That has been the biggest problem I have encountered in pursuing non-medical malpractice – collectability. I may get an offer, but it’s for woefully less than the full value of the harm they’ve caused our mutual clients.  Still, if someone has an active professional license, they have an ability to earn a living and, in my view, can pay a judgment.

When we hire professionals, we ask about their education and experience. We request references. We look at Google Reviews and check out their website. We ask our friends and family if they’ve heard anything about the professional’s ability and track record. As awkward as it might be, we also need to ask if they carry malpractice insurance or can pay for harm caused by negligence. You’ll likely never have to worry about that, but if you do, you’ll be glad you asked.

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