Medical malpractice. Medical malpractice only covers claims made against medical professionals for negligence in rendering medical services. If a doctor operates on the wrong leg, that claim would be handled under the malpractice statutes. If, however, your doctor says something about you that you consider slanderous, that claim would be handled under the libel laws rather than the malpractice laws.
Doctors, of course, are not required to be perfect, but they are punished if they negligently, carelessly, or intentionally cause injury to a patient. The difficulty for the injured party is often establishing to the court's satisfaction that the care rendered fell below what is expected from the doctor.
Generally, particularly in more complex cases, the only ones who can determine if the care fell below what is expected are other doctors. Thus, one of the first steps for anyone bringing suit against a doctor is to find a recognized expert who is willing to testify that the care fell below what is expected in this particular case. If you cannot find an expert, there is no case, unless the facts are so obvious that even a layman would be able to conclude that the care constituted malpractice.
In the typical medical malpractice case, the doctor who is being sued will also have his or her own expert who will testify that the care rendered met the minimum standard. In that event, the judge or the jury would have to decide which expert to believe, which is why medical malpractice cases often boil down to who has the more believable expert.
All lawsuits have elements that the party bringing the suit has to prove in order to prevail. In medical malpractice cases, the four elements are duty, breach, injury, and proximate cause.
Duty. Establishing that a duty existed normally involves proving, for example, that a doctor-patient relationship existed between the injured person and the doctor. That's not usually difficult to prove.
Medical professionals are under a duty or obligation to provide care that meets a certain minimum level of competence. The standard is usually described as that care that would be provided by a reasonably competent doctor under similar circumstances. The injured party's expert would be the one who could define the duty owed.
Breach. Once a duty has been established, the next step is to establish that the doctor failed to live up to his or her duty, which is often the most difficult element to prove. It is difficult because what could or should have done is not always clear. Medicine is not an exact science. If the case against the doctor is based on the belief that the doctor should have pursued a particular course of treatment that he or she didn't pursue, the injured party must establish that a reasonably competent doctor would always have pursued the other course of treatment. If some competent doctors would have pursued one course, and other doctors would have pursued another course under similar circumstance, the fact that the defendant doctor pursued one of these courses may establish that no breach took place, even though the treatment caused injury.
Injury. The third element to prove is the injury, which is usually easy to establish, except where the injuries are emotional or otherwise don't have a physical component. Where injuries may be difficult to establish, the defendant doctor's lawyer will often hire another doctor to examine the injured and render an opinion on the injuries. In that event, the judge or jury will have to weigh the relative merits of the injured person's testimony, on the one hand, against the examining doctor's testimony, on the other hand.
Proximate cause. Proximate cause is a legal term meaning that the injury has to have resulted from the breach of the duty. If, for example, the defendant doctor can establish that the injuries complained of resulted from a condition unrelated to the one that generated the lawsuit, the injured party cannot recover. Testimony from the experts, again, is important in establishing proximate cause.
Legal malpractice. Legal malpractice is in many respects similar to medical practice in that it involves the same four elements and involves care that falls below what is expected from lawyers.
Duty. Similar to medical malpractice cases, the lawyer owes a duty to the client that a reasonably competent attorney would provide. Unlike medical malpractice cases, however, the lawyer owes what is called a fiduciary duty to the client, under certain circumstances. A fiduciary obligation is an additional duty of unswerving loyalty to the client. Thus, a lawyer is under a fiduciary duty to represent the client without any conflicts of interest or to handle the client's money responsibly.
Breach. Similar to medical malpractice cases, establishing that the lawyer breached the duty can be the most difficult element to prove. As with medical cases, experts are often called in to testify as to whether a breach occurred.
Injury. The injured party must establish that they have been injured by the malpractice. Injuries in legal malpractice cases are more difficult to prove than in medical malpractice cases because they are more speculative. For example, if the attorney failed call a key witness in a civil case, the injured party would have to establish how the result would have been different had the witness been called. If the case would have turned out the same way, but the jury would have awarded lower damages, the injury is the difference between the two verdicts. That can be difficult to prove.
Proximate cause. Proximate cause is the legal term for linking the duty and the breach to the injury. Did the malpractice really cause the injury? In some cases, it's easy to determine; in others, it is not.