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Malpractice is the general term which is applied to negligent conduct on the part of a doctor, dentist, lawyer, hospital, or other member of a given profession. Negligence means that someone either performed an act in a less than competent manner or failed to perform an act that a reasonable professional would have performed. A further requirement of a malpractice claim is that the conduct of the professional directly caused the harm that the individual suffered. That harm can be physical injury or death, pain and suffering, emotional distress, property damage or financial loss.

If you feel that you or a member of your family may have encountered malpractice of some type, you should consult an attorney. In this complicated area of the law, an attorney can best advise you whether malpractice occurred. The mere fact that something went wrong or that the results obtained were not what you hoped for does not mean that someone acted negligently or committed malpractice. Your attorney most often will need to consult with experts to determine the expert's opinion as to whether malpractice did in fact occur. This is especially true in malpractice actions against hospitals and/or physicians where issues of medical competence may be beyond the knowledge of lay people and lawyers alike.

The vast majority of malpractice cases must be proved in court through the testimony of such experts. The only exception involves limited cases in which the negligence was so obvious that a jury could readily perceive both that the professional acted negligently and that his negligent conduct directly caused the injuries and damages suffered by the plaintiff. However, in all cases against a licensed professional, within 60 days of the date the lawsuit is filed, the plaintiff must obtain the opinion of an expert that malpractice has occurred.

All lawsuits are governed by appropriate statutes of limitation. A statute of limitation is a period of time within which one must file a lawsuit or be forever barred from doing so regardless of the merits of the case. As a general rule, a two (2) year statute of limitations is applicable in malpractice cases, and the two year period begins on the date the malpractice occurred. In certain cases, the two year statute starts from the time that the malpractice is discovered rather than from the time it actually occurred. It is imperative, however, that an attorney be contacted as quickly as possible after the negligent act is thought to have occurred.

Most malpractice suits are handled by attorneys on a contingent fee basis. This means that unless money is recovered, no fee is owed your attorney. In malpractice cases, however, most attorneys will expect the client to reimburse them for the cost of professional reports and other such expenses directly paid for by the attorney on the client's behalf.  4/11

If you need to consult with an attorney or would like more information on malpractice, please contact the Erie County Bar Association's Lawyer Referral Service.