How to Make a Case for Malpractice in Small Claims Court - dummies

How to Make a Case for Malpractice in Small Claims Court

By Judge Philip Straniere

When a professional fails to perform up to community standards for that profession, he may be sued for malpractice in small claims court. Malpractice is a type of negligence. The most common types of malpractice cases are medical, dental, veterinary, and legal. However, cases can be brought against any professional including architects and accountants.

If you’re bringing a medical malpractice case in small claims court, there’s a major problem with your case. Medical malpractice cases are very complicated and require the skill and expertise of an experienced attorney to succeed. They also require expert testimony and production of medical records — both of which are expensive propositions.

If you’re in small claims court with a medical malpractice case, the odds are you lack a provable case; otherwise, an attorney would have leaped on it. Or, you are what’s known as a difficult client, meaning no attorney will touch your case with a ten-foot pole. But even difficult clients with provable cases get attorneys for malpractice claims.

Medical malpractice cases usually take years to get to trial and require the expenditure of a lot of money getting ready for trial. Lawyers typically take them on a contingency basis, meaning they only collect a fee if they win. It also means that they only take them if they’re confident that they can get a settlement or a victory at trial.

Dental malpractice

Dental malpractice can cover anything that goes wrong in your mouth, and often includes false teeth and bridges not being done properly, a root canal that has to be redone, or the like. There may not be any big claim for pain and suffering in dental malpractice, but the plaintiff is seeking to get back the money paid for the unsatisfactory dental procedure.

The key thing to remember when you go to small claims court is that you’re bringing a malpractice action. And malpractice cases require expert testimony to establish the community standard for a dentist performing that procedure and that the dentist deviated from that procedure. Unless the malpractice is so blatant that an average person would conclude the dentist acted improperly, such as removing the wrong tooth, an expert is mandatory.

Just because there’s a bad result doesn’t mean there was malpractice. You have no guarantee that a dental or medical procedure will be successful even if everything is done properly. Malpractice requires that the professional did not perform the procedure properly and that caused the injury to the plaintiff.

Also, in all likelihood a professional being sued for malpractice will retain an attorney, which in some states will automatically move the case out of small claims court.

Veterinarian malpractice

The same rules that apply to malpractice committed against humans apply to malpractice involving animals. Expert testimony is needed to establish that the veterinarian violated the standard of practice expected of veterinarians in the community where he practices.

An added problem with veterinary malpractice claims is proving the amount of damages. Because people become emotionally attached to their pets, they often spend more on treatment than the pet is worth. Pets and animals are property, so their value is calculated using that standard.

Generally, if you spend more for veterinary treatment than the animal is worth, you can only recover the value of the animal. In most states, the emotional toll on a pet owner is not recoverable as damages, even assuming that you can prove malpractice. However, some states have passed legislation in that regard, so check your state’s law or speak to a pet rights advocacy group.

Lawyer malpractice

Usually legal malpractice claims are raised when an attorney sues to collect a fee and the defendant raises the malpractice of the lawyer as a defense. It also can arise when a client sues to get a fee back, claiming the lawyer didn’t provide the services as agreed.

The legal profession and, in some states, the judiciary has created its own set of rules for dealing with legal malpractice claims arising in the context of legal fee litigation, including the following:

  • Many state and local bar associations have fee arbitration or mediation programs, where the dispute over legal fees can be resolved without resorting to the court system. Most states that have these programs require the lawyer to give the client notice of the existence of the program and the process to be followed if the client elects to participate in it.

    This is an inexpensive way of resolving the dispute without going to court.

  • To prevail on a claim for legal fees, the lawyer should have a written retainer which sets forth the work he engages to perform and how the legal fee is to be calculated, whether by a flat fee, an hourly rate, or on a contingency basis, in which you pay no fee unless the lawyer recovers money for you.

  • The lawyer should also keep time records setting forth the work done, the amount of time spent doing the task, and the fee incurred. No matter what type of fee arrangement is agreed to between the client and the attorney, if the client terminates the relationship, the lawyer is entitled to be paid for services rendered on an hourly basis.

One big problem with lawsuits alleging legal malpractice is that in order to hold the lawyer liable, the client has to prove he would have prevailed on the underlying lawsuit if the lawyer hadn’t committed the malpractice.

To prove you would have prevailed on the underlying case means you need expert testimony. Yes, everything comes back to that with malpractice cases.

With all professional malpractice claims, the law does not hold that the professional guaranteed a result unless he specifically promised to do so. They only have to perform up to the standard of a professional in their community with the same expertise.