Professional Liability: How to Defend Malpractice and Discipline Cases

A professional liability defendant who disputes the plaintiff's theory of the applicable standard of care must retain a qualified expert who can testify about what a reasonably competent practitioner in the same specialty would have done in the same circumstances, and medical malpractice litigation counsel advising on the standard of care defense must evaluate whether the defense expert's qualifications match the specialty and practice setting at issue.

A professional who is accused of breaching a fiduciary duty owed to a client must distinguish between the fiduciary obligations that actually arise from the professional relationship and the broader set of duties that the plaintiff seeks to import from other legal contexts, and civil litigation counsel defending a fiduciary duty claim must evaluate whether the professional relationship actually gave rise to a fiduciary duty under the applicable legal standards.

A physician or other healthcare provider who is sued for medical malpractice must mount a defense that addresses both the standard of care and the causation elements of the claim, because even if the provider's conduct was below the standard of care, the plaintiff must still prove that the deviation caused the specific harm alleged, and medical malpractice counsel defending a malpractice claim must evaluate whether the informed consent documentation is complete and accurately reflects the risks that were disclosed before the procedure.

A lawyer or accountant who is sued for professional malpractice must often demonstrate not only that their conduct was reasonable but also that even if they had performed their services differently, the outcome would have been the same, and legal malpractice and accounting malpractice counsel defending a professional liability claim must evaluate whether the case-within-a-case doctrine requires the defense to prove that the underlying matter would have been resolved in the client's favor absent the alleged error.

A professional liability defendant who cannot dispute that their conduct fell below the applicable standard of care can still prevail by demonstrating that the plaintiff's harm was caused by factors unrelated to the professional's conduct, and civil and criminal litigation counsel advising on the causation defense must evaluate whether the plaintiff's own conduct was a substantial factor in producing the claimed harm.

A professional who is sued for malpractice and whose errors and omissions insurance carrier has reserved the right to deny coverage needs to resolve the coverage dispute before trial so that the professional's defense is not compromised by conflicts between the professional's interests and the insurer's coverage position, and insurance coverage disputes counsel advising on professional liability insurance must evaluate whether the policy's definition of a professional services claim covers the specific allegations.

A licensed professional who is subject to a disciplinary investigation by their licensing board must respond in a manner that addresses the board's concerns while protecting the professional's rights in any parallel civil or criminal proceedings, and administrative hearings counsel advising on a professional license disciplinary matter must evaluate whether the conduct at issue actually violates the applicable professional conduct rules.

A professional whose reputation has been damaged by the filing of a malpractice lawsuit or the initiation of a disciplinary proceeding has a legitimate interest in taking affirmative steps to restore their professional standing once the proceedings have concluded in their favor, and civil litigation evidence counsel advising on post-dispute reputation restoration must evaluate whether the settlement agreement or judgment contains provisions that prevent the plaintiff from making further public statements about the underlying dispute.