Dictionary of Law
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malpractice :: legal definition


Malpractice - n. An act or continuing conduct of a professional which does not meet the standard of professional competence and results in provable damages to his/her client or patient. Such an error or omission may be through negligence, ignorance (when the professional should have known), or intentional wrongdoing. However, malpractice does not include the exercise of professional judgment even when the results are detrimental to the client or patient. Except in cases of extremely obvious or intentional wrongs, in order to prove malpractice there must be testimony of an expert as to the acceptable standard of care applied to the specific act or conduct which is claimed to be malpractice and testimony of the expert that the professional did not meet that standard. The defendant then can produce his/her own expert to counter that testimony. Professions which are subject to lawsuits based on claims of malpractice include lawyers, physicians, dentists, hospitals, accountants, architects, engineers and real estate brokers. In some states in order to file an action for malpractice against a medical caregiver, there must be a written demand or notice which gives the physician or hospital a chance to settle the matter before a suit is filed. In actions against attorneys it is mandatory that the plaintiff prove that the error, if any, caused damages. This means that a lawsuit, claim or negotiation the attorney was handling would have resulted in a win or better recovery except for the malpractice. Thus, there is a requirement of proving the original "case within the case" during the trial of the malpractice claim. Contrary to public perception, substantial judgments in malpractice actions are rare, with studies showing that only a small percentage of the claims result in recovery for the allegedly aggrieved client or patient. The principal reason is that most cries of malpractice are unfounded and are based on unhappiness with the result of the original services no matter how well handled, a breakdown in communication between attorney or doctor and client or patient, anger with the professional, retaliation for attempts to collect unpaid fees or greed.

See also: errors and omissions and Related Law Terms ↓


Related Law Terms

abuse of discretion :: n. a polite way of saying a trial judge has made s ... partner's realistic ability to pay.
acceptance of service :: n. agreement by a defendant (or his/her attorney) ... o accept service. See also: service
action :: n. a lawsuit in which one party (or parties) sues ... . See also: cause of action lawsuit
actionable :: adj. when enough facts or circumstances exist to m ... ction lawsuit malicious prosecution
addendum :: n. an addition to a completed written document. Mo ... proposals or included fraudulently.
adjuster :: n. an employee (usually a non-lawyer) of an insura ... e company in approving settlements.
administrator :: n. the person appointed by the court to handle the ... e also: administer executor probate
admiralty :: n. concerning activities which occur at sea, inclu ... "proctors." See also: maritime law
adoption :: n. the taking of a child into one's family, creati ... the child are met. See also: adopt
adverse witness :: n. a witness in a trial who is found by the judge ... r the opposition. See also: witness
alimony :: n. support paid by one ex-spouse to the other as o ... ild support divorce spousal support
antitrust laws :: n. acts adopted by Congress to outlaw or restrict ... so: price fixing restraint of trade
appeal :: 1) v. to ask a higher court to reverse the decisio ... ng, as in "he has filed an appeal."
appearance :: n. the act of a party or an attorney showing up in ... neral appearance special appearance
approach the bench :: v. an attorney's movement from the counsel table t ... ake a recess to go to the restroom.
arbitrator :: n. one who conducts an arbitration, and serves as ... he other two. See also: arbitration
attempt :: v. and n. to actually try to commit a crime and ha ... felt he tried but did not succeed.
Attorney General :: n. in each state and the federal government the hi ... izenry. See also: Solicitor General
attorney of record :: n. the attorney who has appeared in court and/or s ... eve have long since been completed.
attorney-client privilege :: n. the requirement that an attorney may not reveal ... ivileged communication work product
attorney-in-fact :: n. someone specifically named by another through a ... cument. See also: power of attorney
attorney's fee :: n. the payment for legal services. It can take sev ... ees in the particular type of case.
attorney's work product :: n. written materials, charts, notes of conversatio ... ivileged communication work product
bad faith :: 1) n. intentional dishonest act by not fulfilling ... ean hands doctrine fraud good faith
bailiff :: n. 1) a court official, usually a deputy sheriff, ... isdictional territory of a bailiff.
bankruptcy :: n. a federal system of statutes and courts which p ... y proceedings trustee in bankruptcy
bankruptcy proceedings :: n. the bankruptcy procedure is: a) filing a petiti ... ankruptcy court claim in bankruptcy
bar examination :: n. the examination given in each state by either t ... n that district. See also: attorney
bifurcate :: v. the order or ruling of a judge that one issue i ... is necessary. See also: bifurcation
caption :: n. the first section of any written legal pleading ... to the exact format of the caption.
case system :: n. the method of studying law generally used in Am ... Langdell and soon became standard.
cause of action :: n. the basis of a lawsuit founded on legal grounds ... property. See also: element lawsuit
charitable remainder trust (Charitable Remainder Irrevocable Unitrust) :: n. a form of trust in which the donor (trustor or ... ed up or committed. See also: trust
child custody :: n. a court's determination of which parent, relati ... pport custody divorce joint custody
civil calendar :: n. the list of lawsuits (cases) that are approachi ... y sent to trial. See also: calendar
class action :: n. a lawsuit filed by one or more people on behalf ... ees usually require court approval.
clean hands doctrine :: n. a rule of law that a person coming to court wit ... ices. See also: affirmative defense
Code of Professional Responsibility :: n. a set of rules governing the ethical conduct of ... de has been adopted by most states.
common counts :: n. claims for debt alleged in a lawsuit (included ... so: cause of action complaint count
comparative negligence :: n. a rule of law applied in accident cases to dete ... utory negligence damages negligence
complaint :: n. the first document filed with the court (actual ... g prayer service of process summons
conclusion of fact :: n. in a trial, the final result of an analysis of ... quested. See also: finding judgment
conflict of interest :: n. a situation in which a person has a duty to mor ... a position adverse to the customer.
consent decree :: n. an order of a judge based upon an agreement, al ... he same. See also: consent judgment
consumer protection laws :: n. almost all states and the federal government ha ... rranty product liability securities
contempt of court :: n. there are essentially two types of contempt: a) ... roduce evidence. See also: sanction
contingent fee :: n. a fee to a lawyer which will be due and payable ... epend on the outcome are unethical.
continuing objection :: n. an objection to certain questions or testimony ... ional distress. See also: objection
contract :: 1) n. an agreement with specific terms between two ... n oral contract unilateral contract
contributory negligence :: n. a doctrine of common law that if a person was i ... : comparative negligence negligence
conversion :: n. a civil wrong (tort) in which one converts anot ... the crime of theft. See also: theft
corporate opportunity :: n. a business opportunity which becomes known to a ... ative action fiduciary relationship
count :: n. each separate statement in a complaint which st ... also: cause of action common counts
counterclaim :: n. a retaliatory claim by a defendant against a pl ... d. See also: answer cross-complaint
court :: n. 1) the judge, as in "The court rules in favor o ... cost and wait of full court trials.
court costs :: n. fees for expenses that the courts pass on to at ... ee also: cost bill prevailing party
credibility :: n. whether testimony is worthy of belief, based on ... jective. See also: credible witness
criminal calendar :: n. the list of criminal cases to be called in cour ... e plea preliminary hearing sentence
cross-complaint :: n. after a complaint has been filed against a defe ... g prayer service of process summons
damages :: n. the amount of money which a plaintiff (the pers ... liquidated damages special damages
dedication :: n. the giving of land by a private person or entit ... perty. See also: quiet title action
deposition :: n. the taking and recording of testimony of a witn ... See also: deponent depose discovery
directed verdict :: n. a verdict by a jury based on the specific direc ... element judgment jury trial verdict
disbar :: v. to remove an attorney from the list of practici ... legal ethics. (See moral turpitude
disbarment :: n. the ultimate discipline of an attorney, which i ... ation and/or cure. See also: disbar
dismiss :: v. the ruling by a judge that all or a portion (on ... nst that party. See also: dismissal
dismissal :: n. 1) the act of voluntarily terminating a crimina ... f the settlement. See also: dismiss
DNA :: n. scientifically, deoxyribonucleic acid, a chromo ... is strongly in favor of admission.
docket :: 1) n. the cases on a court calendar. 2) n. brief n ... r or make notes on action in court.
duty of care :: n. a requirement that a person act toward others a ... e also: negligence standard of care
eminent domain :: n. the power of a governmental entity (federal, st ... ngs. See also: condemn condemnation
emotional distress :: n. an increasingly popular basis for a claim of da ... ar value upon it. See also: damages
enjoin :: v. for a court to order that someone either do a s ... so: injunction temporary injunction
entrapment :: n. in criminal law, the act of law enforcement off ... e drugs if not pressed by the narc?
error :: n. a mistake by a judge in procedure or in substan ... or. See also: harmless error remand
errors and omissions :: n. short hand for malpractice insurance which give ... issions which amount to negligence.
evidence :: n. every type of proof legally presented at trial ... material object objection relevant
excusable neglect :: n. a legitimate excuse for the failure of a party ... See also: default default judgment
execution :: n. 1) the act of getting an officer of the court t ... so: death penalty writ of execution
expert testimony :: n. opinions stated during trial or deposition (tes ... inal case. See also: expert witness
expert witness :: n. a person who is a specialist in a subject, ofte ... sitions. See also: expert testimony
extraordinary fees :: n. attorneys' fees claimed, usually in the adminis ... n. See also: attorney's fee probate
fictitious defendants :: n. when a party suing (plaintiff) is not sure if h ... are not permitted in federal cases.
file :: 1) v. to deposit with the clerk of the court a wri ... rrespondence and notes on the case.
final settlement :: n. an agreement reached by the parties to a lawsui ... rneys present. See also: settlement
fraud :: n. the intentional use of deceit, a trick or some ... audulent conveyance intrinsic fraud
gag order :: n. a judge's order prohibiting the attorneys and t ... st day in office, January 22, 1993.
governmental immunity :: n. the doctrine from English common law that no go ... o: Federal Tort Claims Act immunity
gravamen :: n. Latin for "to weigh down," the basic gist of ev ... o: cause of action charge complaint
guardian :: n. a person who has been appointed by a judge to t ... torship. See also: conservator ward
harassment :: (either harris-meant or huh-rass-meant) n. the act ... See also: harass sexual harassment
hearsay rule :: n. the basic rule that testimony or documents whic ... interest dying declaration hearsay
hostile possession :: n. occupancy of a piece of real property coupled w ... verse possession quiet title action
hostile witness :: n. technically an "adverse witness" in a trial who ... so: adverse witness leading witness
impute :: v. 1) to attach to a person responsibility (and th ... also. See also: vicarious liability
in personam :: adj. (in purr-soh-nam) from Latin for "directed to ... here. See also: in rem jurisdiction
in propria persona :: adj. from Latin "for one's self," acting on one's ... client and an ass for an attorney."
injunction :: n. a writ (order) issued by a court ordering someo ... t. See also: injunctive relief writ
insanity :: n. mental illness of such a severe nature that a p ... M'Naughten rule temporary insanity
insurance :: n. a contract (insurance policy) in which the insu ... t clause Workers' Compensation Acts
intent :: n. mental desire and will to act in a particular w ... ess homicide or other lesser crime.
interest :: n. 1) any and all, partial or total right to prope ... nal property real property standing
intervene :: v. to obtain the court's permission to enter into ... ntion joinder multiplicity of suits
intoxication :: n. 1) the condition of being drunk as the result o ... r. See also: vehicular manslaughter
irrelevant :: adj. not important, pertinent, or germane to the m ... ce immaterial incompetent objection
irreparable damage or injury :: n. the type of harm which no monetary compensation ... also: equity injunction remedy writ
issue :: 1) n. a person's children or other lineal descenda ... the body incorporation share stock
joinder :: n. the joining together of several lawsuits or sev ... er misjoinder multiplicity of suits
judge :: 1) n. an official with the authority and responsib ... ice justice of the peace magistrate
judgment creditor :: n. the winning plaintiff in a lawsuit to whom the ... 's rights judgment prevailing party
jurisdiction :: n. the authority given by law to a court to try ca ... Superior Court Supreme Court venue
jury :: n. one of the remarkable innovations of the Englis ... hallenge sequester venire voir dire
juvenile court :: n. a special court or department of a trial court ... See also: court juvenile delinquent
laches :: n. the legal doctrine that a legal right or claim ... , breach of contract, fraud, etc.).
last clear chance :: n. a rule of law in determining responsibility for ... contributory negligence negligence
law :: n. 1) any system of regulations to govern the cond ... um maritime law natural law statute
law book :: n. any of numerous volumes dealing with law, inclu ... : common law law Shepardize statute
lawsuit :: n. a common term for a legal action by one person ... See also: case cause of action suit
lay a foundation :: v. in evidence, to provide to the judge the qualif ... ce and training. See also: evidence
levy :: 1) v. to seize (take) property upon a writ of exec ... heriff's sale tax writ of execution
liability :: n. one of the most significant words in the field ... bility joint tortfeasors negligence
libel :: 1) n. to publish in print (including pictures), wr ... libel per se public figure slander
lien :: n. any official claim or charge against property o ... ord's lien mechanic's lien mortgage
lis pendens :: (lease pen-dense) n. Latin for "a suit pending," a ... ob can be penalized by court order.
literary property :: n. the writings of an author which entitles him/he ... as copyrighted. See also: copyright
living will :: n. also called "a durable power of attorney," it i ... upport. See also: power of attorney
malice :: n. a conscious, intentional wrongdoing either of a ... cution murder public figure slander
malicious prosecution :: n. filing a lawsuit with the intention of creating ... vor of the victim. See also: malice
mandamus :: (man-dame-us) n. Latin for "we order," a writ (mor ... mandamus. See also: writ of mandate
mandate :: n. 1) any mandatory order or requirement under sta ... See also: mandamus writ of mandate
maxims :: n. a collection of legal truisms which are used as ... e and the ordinary habits of life."
meet and confer :: n. a requirement of courts that before certain typ ... s which are freighted with emotion.
misjoinder :: n. the inclusion of parties (plaintiffs or defenda ... ent transactions. See also: joinder
modification :: n. a change in an existing court order or judgment ... terms of child support and custody.
motion :: n. a formal request made to a judge for an order o ... g, an oral motion may be permitted.
motion for a new trial :: n. a request made by the loser for the case to be ... hstanding the verdict motion N.O.V.
motion for a summary judgment :: n. a written request for a judgment in the moving ... strict procedures. See also: motion
motion for dismissal :: (non-suit) n. application by a defendant in a laws ... otion for nonsuit. See also: motion
negligence :: n. failure to exercise the care toward others whic ... gence per se res ipsa loquitur tort
no fault insurance :: n: a type of automobile insurance required of car ... ling lawsuits. See also: negligence
nolle prosequi :: (no-lay pro-say-kwee) n. Latin for "we shall no lo ... nocent and declared nolle prosequi.
nominal damages :: n. a small amount of money awarded to a plaintiff ... had been damaged. See also: damages
notice :: n. 1) information, usually in writing in all legal ... Thirty-day notice three-day notice
nunc pro tunc :: (nuhnk proh tuhnk) adj. Latin for "now for then," ... r actuality of a bigamous marriage.
object :: 1) v. to ask the court not to allow a particular q ... he contract..." See also: objection
objection :: n. a lawyer's protest about the legal propriety of ... ng question object overrule sustain
of counsel :: adj. reference to an attorney who is not actively ... quiring his/her full-time presence.
off calendar :: adj. refers to an order of the court to take a law ... of either party. See also: calendar
officer of the court :: n. any person who has an obligation to promote jus ... also: attorney bailiff clerk judge
omission :: n. 1) failure to perform an act agreed to, where t ... of contract negligence reformation
on the merits :: adj. referring to a judgment, decision or ruling o ... s if this mistake had not occurred.
order :: 1) n. every direction or mandate of a judge or a c ... defendant. See also: judge judgment
palimony :: n. a substitute for alimony in cases in which the ... the relationship. See also: alimony
peremptory challenge :: n. the right of the plaintiff and the defendant in ... challenge for cause jury voir dire
petition :: 1) n. a formal written request to a court for an o ... dent. See also: divorce motion writ
power of attorney :: n. a written document signed by a person giving an ... y, as in a real estate transaction.
privileged communication :: n. statements and conversations made under circums ... See also: attorney-client privilege
probate :: 1) n. the process of proving a will is valid and t ... e also: administrator executor will
process :: n. in law, the legal means by which a person is re ... service of process subpena summons
promissory note :: n. a written promise by a person (variously called ... lso: interest obligee obligor usury
proof :: n. confirmation of a fact by evidence. In a trial, ... doubt preponderance of the evidence
proper party :: n. a person or entity who has an interest (financi ... lf. See also: necessary party party
prosecute :: v. 1) in criminal law, to charge a person with a c ... rney General prosecution prosecutor
prosecution :: n. 1) in criminal law, the government attorney cha ... se). See also: prosecute prosecutor
proximate cause :: n. a happening which results in an event, particul ... also: intervening cause negligence
qui tam action :: : (kwee tam) n. from Latin for "who as well," a la ... technical violations and/or errors.
quiet title action :: n. a lawsuit to establish a party's title to real ... opposition. See also: notice title
record :: 1) v. (ree-cored) to put a document into the offic ... eeding race to the courthouse trial
regulations :: n. rules and administrative codes issued by govern ... es usually have similar procedures.
remedy :: n. the means to achieve justice in any matter in w ... gment provisional remedy settlement
remittitur :: n. 1) a judge's order reducing a judgment awarded ... party on appeal). See also: remand
retainer :: n. the advance payment to an attorney for services ... e stuck with extensive unpaid fees.
reversal :: n. the decision of a court of appeal ruling that t ... e of damages is ordered to dismiss.
reversible error :: n. a legal mistake at the trial court level which ... nt at the trial. See also: reversal
review :: n. the judicial consideration of a lower court jud ... ate court reversal reversible error
sanction :: n. 1) a financial penalty imposed by a judge on a ... ction." See also: contempt of court
satisfaction of judgment :: n. a document signed by a judgment creditor (the p ... ord. See also: abstract of judgment
sentence :: 1) n. the punishment given to a person convicted o ... ence restitution suspended sentence
service by mail :: n. mailing legal pleadings to opposing attorneys o ... attorney by mail. See also: service
service of process :: n. the delivery of copies of legal documents such ... by publication substituted service
setoff :: (offset) n. a claim by a defendant in a lawsuit th ... ee also: affirmative defense offset
settlement :: n. the resolution of a lawsuit (or of a legal disp ... ult in settlement. See also: settle
small claims court :: n. a division of most municipal, city or other low ... od example of a small claims court.
sodomy :: n. anal copulation by a man inserting his penis in ... tiality). See also: bestiality rape
speaking demurrer :: n. an attempt to introduce evidence during a heari ... the operation." See also: demurrer
special appearance :: n. the representation by an attorney of a person i ... anged. See also: general appearance
special circumstances :: n. in criminal cases, particularly homicides, acti ... urant. See also: capital punishment
special prosecutor :: n. an attorney from outside of the government sele ... Robert Bork finally discharged Cox.
specific performance :: n. the right of a party to a contract to demand th ... artwork. See also: contract prayer
standard of care :: n. the watchfulness, attention, caution and pruden ... of care foreseeable risk negligence
star chamber proceedings :: n. any judicial or quasi-judicial action, trial or ... ate 1960s. See also: kangaroo court
statute of limitations :: n. a law which sets the maximum period which one c ... ies. See also: demurrer laches toll
strike :: 1) v. to remove a statement from the record of the ... ing the business, factory or store.
summary adjudication of issues :: n. a court order ruling that certain factual issue ... is made. See also: summary judgment
summary judgment :: n. a court order ruling that no factual issues rem ... tion summary adjudication of issues
temporary insanity :: n. in a criminal prosecution, a defense by the acc ... diminished capacity insanity intent
testify :: v. to give oral evidence under oath in answer to q ... deposition evidence testimony trial
tort :: n. from French for "wrong," a civil wrong or wrong ... nce slander trespass wrongful death
tort claims act :: n. a federal or state act which, under certain con ... . See also: Federal Tort Claims Act
transcript :: n. the written record of all proceedings, includin ... unless transcription is requested.
trial :: n. the examination of facts and law presided over ... at a hearing held at a later time.
trust :: n. an entity created to hold assets for the benefi ... testamentary trust trustee trustor
variance :: n. 1) an exception to a zoning ordinance, authoriz ... process." See also: dismissal proof
venue :: n. 1) the proper or most convenient location for t ... ion. See also: forum non conveniens
verdict :: n. the decision of a jury after a trial, which mus ... nt quotient verdict special verdict
vexatious litigation :: n. filing a lawsuit with the knowledge that it has ... lous malicious prosecution sanction
voir dire :: (vwahr [with a near-silent "r"] deer) n. from Fren ... t witness jury peremptory challenge
Workers' Compensation Acts :: n. state statutes which establish liability of emp ... rs' compensation insurance company.
wrongful death :: n. the death of a human being as the result of a w ... ual beneficiaries (family members).

Popular Law Searches

legal definition ministerial act :: n. an act, particularly of a governmental employee ... exercising any individual judgment.
chancery legal definition :: n. a court that can order acts performed. Today ch ... ts in most states. See also: equity
testamentary disposition legal definition :: n. how the terms of a will divide the testator's ( ... named beneficiaries. See also: will
contract of sufferance :: n. a "hold-over" tenancy after a lease has expired ... y tenancy at will unlawful detainer
forthwith legal definition :: adv. a term found in contracts, court orders and s ... mediacy, with no excuses for delay.
forthwith definition legal :: adv. a term found in contracts, court orders and s ... mediacy, with no excuses for delay.
what is to wit in a legal contract :: prep. that is to say. Example: "the passengers in ... tty Bumgartner and Sherry Younger."
mirror wills legal definition :: n. the wills of a husband and wife which are ident ... d each names the other as executor.
clean hands doctrine latin :: n. a rule of law that a person coming to court wit ... ices. See also: affirmative defense
sine qua non only relates to contract law :: (see-nay kwah nahn) prep. Latin for "without which ... qua non of the injury to Playmate.

Other Law Terms - M

M. O. :: n. slang for modus operandi, the way or pattern in ... her crime. See also: modus operandi
magistrate :: n. 1) a generic term for any judge of a court, or ... ce of the peace preliminary hearing
Magna Carta :: n. Latin for "Great Charter," it was a document de ... s. It is also spelled Magna Charta.
mail box rule :: n. in contract law, making a written offer or acce ... nse in hand when the time runs out.
maim :: v. to inflict a serious bodily injury, including m ... to a prison term. See also: mayhem
majority :: n. 1) the age when a person can exercise all norma ... t. See also: child infancy minority
make :: v. 1) to create something. 2) to sign a check, pro ... xchange check maker promissory note
make one whole :: v. to pay or award damages sufficient to put the p ... fault of another. See also: damages
maker :: n. 1) the person who signs a check or promissory n ... : check payee payor promissory note
malfeasance :: n. intentionally doing something either legally or ... sponsibility. See also: misfeasance
malice :: n. a conscious, intentional wrongdoing either of a ... cution murder public figure slander
malice aforethought :: n. 1) the conscious intent to cause death or great ... : first degree murder malice murder
malicious prosecution :: n. filing a lawsuit with the intention of creating ... vor of the victim. See also: malice
malpractice :: n. An act or continuing conduct of a professional ... eed. See also: errors and omissions
malum in se :: (mal-uhm in say) adv. Latin referring to an act th ... hibitum. See also: malum prohibitum
malum prohibitum :: (mal-uhm prohibit-uhm) adj. Latin meaning "wrong d ... lso: malum in se white collar crime
mandamus :: (man-dame-us) n. Latin for "we order," a writ (mor ... mandamus. See also: writ of mandate
mandate :: n. 1) any mandatory order or requirement under sta ... See also: mandamus writ of mandate
mandatory :: adj., adv. absolutely demanded or required. ... v. absolutely demanded or required.
mandatory joinder :: n. the required inclusion of a party in a lawsuit ... sues in the case. See also: joinder