Malpractice – What is it, definition and concept | 2022

Malpractice is the term that defines professional liability when work performance is performed negligently.

This concept of malpractice is used for any profession where certain specific knowledge is needed and that the lack of care or expertise in the development of their profession causes damage.

The best known and most used malpractice is in the world of medicine. But, malpractice can also be demanded of other professions. Some types are:

  • Banking area: It is usually the abuse carried out by some financial entities in the face of the client’s ignorance. For example, the floor clause that was established in mortgage contracts without the consumer understanding its function.
  • Legal scope: It is the one committed by lawyers in the exercise of their profession when they do not act with due diligence in the defense of their client.
  • Administrative malpractice: failing to meet the deadlines established by law.
  • A professional may also be claimed for malpractice due to professional contractual liability. For example, if a person hires an architect, he expects him to act with the due diligence required by his profession. But, if he does not do it, causing damage to a construction, the client who signed the contract with the architect may demand compensation for the malpractice of the architect.

What causes malpractice?

The main cause of malpractice is negligence. But what is negligence?

  • Negligence is the lack of care and application of specific knowledge in the performance of an obligation. It is not following the ethical codes of the profession.
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It means developing the profession without care, without attention and not applying the required diligence. A negligent person is one in which, in a specific situation, they are expected to have a certain behavior or to have specific care and they do not have it.

Malpractice results from professional legal negligence. Usually, the main professional legal negligence is medical: it is errors or omissions in medical practice. That is, medical personnel do not fulfill their duty when carrying out their work.

  • Another cause that can cause the demand for compensation for malpractice is recklessness. However, recklessness may not cause damage and therefore in that case no compensation can be claimed. But what is recklessness? It is the lack of concern and caution.

Requirements

In order for a person to have the right to file a legal action to claim damages, certain requirements must be met:

  1. There must be damage or injury. Depending on the characteristics of this damage, this will be the amount of compensation. This damage can be physical, psychological or economic. It is also necessary that these damages can be quantified.
  2. There must be a causal link between the professional’s actions and the damage caused.
  3. The professional must not have followed the ethical and deontological rules of his profession. This in the medical field is known as the lex artis. The professional does not follow this, that is, the rules stipulated for the development of his profession.

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