Negative Effects of Medical Malpractice

Every year, medical malpractice is a serious problem for thousands of people across the country. Procedure occurs when a heath care professional fails to provide a patient with a standard quality of care which results in injury or harm to the patient.

Medical malpractice can take place in any health facility by any type of medical personnel that can include doctors, nurses, hospital workers, dentists, eye doctors, surgeons,etc. An article published in the Journal of the American Medical Association (JAMA) noted that 'every year in the United States 12,000 patient deaths occurred due to unnecessary surgery, 7,000 deaths were caused by medication errors in hospitals, and 20,000 deaths resulted from other errors in hospitals.' The Journal of the American Association for Justice stated that a decade ago 'as many as 98,000 people died every year from preventable medical errors, costing the nation an estimated billion dollars.'

Lawyer Malpractice

That can result from a number types of mistakes such as anesthesia errors, birth errors, defective drugs, or products, medical experimentation, improper diagnosis, medication errors, nursing home abuse, surgical errors, wrongful death, failing to take appropriate medical action, and much more.

Negative Effects of Medical Malpractice

Medical malpractice can negatively affect all aspects of one's life, from the physical and emotional damage to serious financial hardships. Such hardships can include:

- Loss of Work
- Loss of Wages
- Permanent Disability
- Loss of Quality of Life
- Loss of Future Wages
- Soaring Medical Expenses
- Long Term or Life Long Medical Expenses
- Chronic Pain
- Disfigurement
- Emotional Trauma

When a death occurs as a result of negligence, or other liability, the surviving dependents or beneficiaries may be entitled to monetary damages in order to help pay for medical costs and other expenses incurred by the family of the victim.

'Medication errors are among the most common medical errors, harming at least 1.5 million people every year,' says a new report from the Institute of Medicine of the National Academies. The reported also reported that 'extra medical costs of treating drug-related injuries occurring in hospitals alone conservatively amount to .5 billion a year.' These costs have resulted in an increase in health insurance premiums.

Even after receiving sufficient information from patients, medical professionals can still make an incorrect diagnosis resulting in personal injury or death. If you feel that you have suffered an injury as a result of medical error, you may be able to file a medical malpractice claim. The best way to determine if you have a claim is to consult with an attorney that specializes in this claim.

If medical malpractice has been confirmed, you will still have to prove that resulted in injury or harm. If a attorney has proven injury or harm, then you may be compensated for:

- Medical Expenses (Current and Future)
- Rehabilitation
- Pain and Suffering
- Special health Care Assistance Devices and Equipment
- Care and Assistance in the home
- Loss of Wages (Present and Future)
- Travel expenses
- Punitive Damages

It is often difficult to know if you need a medical malpractice attorney. When you file a claim, your health care provider's insurance company may attempt to compensate you for the least amount possible. If you think you are the victim of malpractice, consulting with a lawyer that specializes in malpractice will help determine if there is a case. An experienced medical malpractice lawyer can help you recover compensation for many different types of losses due to the negligence of another working in the health care field.

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Pennsylvania Medical Negligence Lawyer

Need a Pennsylvania Medical negligence lawyer? This malpractice is something that occurs all too often in today's society, and many people suffer as a result of this negligence This is a term that covers a wide range of negligent acts in the medical field, and it doesn't just apply to doctors and nurses but also to other professionals such as dentists, midwives, and opticians. With alawyer from Pennsylvania residents can ensure that they receive both justice and damages for any injury or harm they come to as a result of this negligence and every year many people successfully claim huge compensation settlements as a result of carelessness.

By finding an experienced and qualified attorney residents can increase their chances of claiming for expenses, pain, and injury caused through negligence Unfortunately some people are also killed as a result of medical negligence and with the help of a good lawyer residents that have lost a loved one through this negligence can also file a successful claim for damages. Your lawyer will be able to put together a solid lawsuit to prove negligence and to get you as much in the way of financial compensation as possible.

Lawyer Malpractice

There are many different scenarios that can come under the umbrella of negligence and an experienced lawyer will have already dealt with many or perhaps all of these. They can include wrong site surgery, misdiagnosis, prescribing the wrong medication, refusing to treat a patient, inappropriate treatment, and various other negligent acts. It can be difficult to prove neglect in some cases, which is why it can be so vital that you have a legal expert with experience and specialist knowledge to help you with your case.

Pennsylvania Medical Negligence Lawyer

Although it can be expensive to hire a medical negligence lawyer Pennsylvania residents will find that it is also necessary in order to prove many cases of law suites finances can be a big problem for many people though, and this is where a prepaid legal services plan can prove invaluable. With a prepaid plan you don't have to find an unexpected lump sum for legal assistance - you simply pay a small monthly premium and you can benefit from advice and assistance from an experienced and skilled lawyer.

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Do I Have a Medical Malpractice Case?

Some people who have been hurt by their doctor or other medical provider may think that they could sue. They will ask a lawyer, do I have a medical malpractice case and a lawyer will have to help them decide. By taking a statement and all information a patient can give the attorney, they will be able to tell if there is enough damage to warrant a lawsuit.

There are two things a patient and their attorney must show before they can bring a lawsuit against a doctor or other health care provider. One, that the doctor or another medical personnel made a mistake and two, that the mistake cost the person harm. Often times it is not easy to prove these two things and therefore a case against a health care provider could be a long process.

Lawyer Malpractice

Often times it is what a doctor or health care assistant does not do that could cause a patient harm. This is call omission. If they were negligent in their actions or non-actions, then this would constitute a lawsuit. There are sometimes when a person in the health care field is tired and may forget to perform a simple procedure and it causes the patient harm, then a lawyer would help the patient with a suit against this individual and possibly the hospital or clinic they work for.

Do I Have a Medical Malpractice Case?

One of the items a lawyer will check to see is if the doctor or health care personnel followed the standard of care. This is the acceptable normal or average for treatment of a similar person in a similar situation. For instance, a person in Alaska who is an elderly individual would be treated differently then a person in Florida who is in their twenties. This standard of care is also dependent upon where a person lives, not just on their age and condition they start out in.

Even if a doctor made an error, they have to have caused the patient harm in some way before a lawsuit will be able to take place in a court of law. The proof of harm is the second part of the equation and the harm has different degrees to it. Some people are temporarily disabled by a doctor or nurses negligence while others are permanently injured and can no longer function as they used to.

It is a regular practice in the legal community to have at least one expert witness and that could be a medical expert witness who will testify of a person's injury. They could also call to the stand a dental expert witness if the injury has something to do with a person's teeth or mouth. Expert witnesses are often paid to say what they think is the problem or what has happened to an individual who is suffering from an injury due to a doctor or nurses mistake. These expert witnesses are expensive at somewhere around 00 per hour because they are taking off work to testify.

Of course the doctor, nurse or health care technician will also have their expert witnesses in order to dispute whatever an individual and their attorney are claiming. These experts will usually say the opposite of what the first witnesses claim because they want the doctor, nurse or other health care provider to win and be found not guilty of misconduct.

If an individual is injured and they are going to pursue a lawsuit, they will need to ask an attorney, do I have a medical malpractice case. An attorney will be the only person who could help an individual decide if they have a case or not. By looking at all the evidence and weighing all the pros and cons of a trial, which will take a long time, a person will then need to make up their mind if it is worth the hassle to sue.

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The Scope of Taking Up Medical Malpractice Law As a Profession

When a doctor fails in his duty to provide adequate medical care to a patient and the latter suffers injury or illness thereafter for which he has to spend a substantial amount of money, a medical malpractice is supposed to have taken place. Medical malpractice may be caused by any person involved in health care, for example-physician, pediatrician, microbiologist, toxicologist, technicians, nursing staff and even hospital workers.

A lawyer who deals with cases of malpractice, one who is well versed in medical law and hospital systems is called a medical malpractice lawyer. He fights for the legal rights of the person who has been medically wronged. Even if the patient has signed a consent form, giving approval for treatment or surgery, the doctor cannot be relieved from the responsibility of inadequate care meted out to the patient.

Lawyer Malpractice

Health care providers and nursing homes are strictly bound by medical laws. Any deviation from the conformed standards of care would make them liable for heavy lawsuits. Even verbal abuse is not permitted. In case any physical injury is inflicted, then the victim is entitled to permanent damages known as recovery. However failure of a medical practitioner to cure a person's illness cannot be brought before the court. Only in cases of misdiagnosis due to negligence in conducting certain tests or administering illegal drugs etc can a malpractice lawyer present a valid case. Most hospitals are covered by insurance against malpractice cases due to the heavy nature of the claims made.

The Scope of Taking Up Medical Malpractice Law As a Profession

Medical malpractice lawyer can devote their profession to cases related to any one branch of medicine. For example, he can deal solely with gynecological or anesthesia negligence. Such specialization is only going to rake in more income. His charges can run into 6 and 7 figures. He usually claims his compensation at the end of the case which would be a percentage of the amount recovered from the client. Usually a 1/3 percentage is claimed deducting court fees and other charges incurred during the case. Thus he works on a contingency-fee basis. Another option is to employ him on a retainer fee basis.

If the medical malpractice lawyer is part of a large firm comprising a team of attorneys, then his compensation would be in terms of the number of billable hours put forth by him. This refers o the amount of time he spends on representing the firm's clients.

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Seek the Assistance of a Medical Malpractice Lawyer

Our society holds the medical profession to a higher standard than almost any other profession. We trust our lives and well being to doctors and nurses and we have faith that they will do what is right to protect and safe guard us. When something goes wrong due to negligence on the part of such professionals the results can be far more devastating than when something goes wrong with anything else in our lives.

Holding the medical professional and hospital accountable for damages when they are generally so highly revered can seem like an overwhelming obstacle for many patients. However having a malpractice lawyer can help guide clients through the confusing maze of not only the legal system to create accountability but also the medical system to establish malpractice has occurred. Malpractice is not as simple as a doctor or nurse making a mistake. The process to prove malpractice involves multiple elements being established.

Lawyer Malpractice

The first element is to show that a duty was owed. Simply put this means if a person shows up in the emergency room with the symptoms of a heart attack or in labor with a baby, the hospital must act to give care. This is the duty owed. The second element is to show the medical professionals breached that duty. An example would be a patient not receiving care and giving birth in the waiting room with no care provided. Clearly the duty owed- medical help-was breached or denied.

Seek the Assistance of a Medical Malpractice Lawyer

The third element is to show harm was caused as a result. The harm in this example could be a baby born prematurely, dead or deprived of oxygen due to the lack of medical help needed to avoid this occurrence. The final element is to show that damage was done and although this may seem more subjective, a baby born prematurely can suffer a multitude of complications and a baby born deprived of oxygen will have the potential long term damages of brain damage as a result.

Sometimes it may not be a deliberate act that is seen as malpractice. A doctor who fails to test for a urinary tract infection despite a patient showing the expected symptoms for example has failed to perform a duty by deviating from the expected procedure to have a lab test performed. Although the oversight may not have been done with malicious intent it does breach the duty owed to the patient. The resulting harm can led to an undiagnosed condition that eventually leads to kidney damage.

Since malpractice can clearly be a complex thing to understand with so many variations that vary patient by patient, if malpractice is suspected a malpractice lawyer should be consulted to help those who feel they may have been harmed, to fully understand their legal rights so they can take the appropriate action towards accountability.

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Factors in Medical Malpractice Claim

Medical malpractice occurs when a medical professional becomes negligent of his duties, which sometimes lead to injury or harm to a patient. As a result, injured patients and medical malpractice victims are left with no other recourse rather than to seek redress through legal means.

You have to remember that in the legal concept, medical malpractice is not limited to the conduct of doctors but also applies to nurses, anesthesiologists, health care facilities, pharmaceutical companies, and other groups that provide health care services.

Lawyer Malpractice

Before filing a medical malpractice claim, first you must be able to recognize the five warning signs of medical malpractice. How would you know if you are a victim of a medical malpractice? Here are the signs:

Factors in Medical Malpractice Claim

o When symptoms are recurring and you do not feel any better despite treatment, it is time for you to get a second or a third medical opinion

o When the symptoms do not match the diagnoses

o When diagnoses are purely based on laboratory tests

o A doctor attributes a common illness to an uncommon ailment. Sometimes a doctor may say that your headache is not an ordinary headache but a brain tumor.

o A diagnoses lack one or two other test parts.

If you experienced one of these signs, you are surely a victim of medical malpractice. When this happens, the best thing to do is hire the services of a lawyer who can help you file a medical malpractice claim.

To establish medical negligence, you must be able to prove the following:

o The existence of a duty by the health professional to the patient - There must be an existing relationship of provider-client in which a health professional is obliged to serve a client

o A breach in the applicable standard of care or a deviation from the standards - When a certain lowering of standard in service occur, it may be considered a breach of standards

o A causal relationship between the standard of care and the patient's injuries - The deviation in the service standards must have an effect on the patient's condition

o The injury of the patient - the nature, extent and condition of the injury

Factors Involved in Filing a Case

The decision to pursue a medical malpractice claim is the starting step in the recovery process. Medical malpractice laws are complicated and differ with each state. You have to find the proper lawyer who is acquainted with the laws pertinent to your case.

Another factor is cost involved in the case. In filing a medical malpractice claim, you have to be ready to shoulder the expenses of getting the services of expert witnesses. Expert witnesses and consultants are professional people who will dispute your doctor's statements.

After determining that you have a substantial claim, now you have to choose a lawyer who can best represent you in the case. In considering a lawyer, you have to look into the lawyer's experience, the number of cases he handled, etc. In getting the services of a medical malpractice lawyer, it is necessary that you check his backgrounds. Also, try to find out if he can work in your case on a contingency basis.

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Blood Clots and Medical Malpractice

Blood clots form when blood cells joint together or coagulate. Blood clots can form anywhere in your circulatory system. Depending upon the location of the clots, they can block blood flow to vital parts of your body including your heart and brain and can cause serous conditions which can result in heart attacks and strokes.            

Blood clots are caused by a lack of oxygen in the blood. This condition generally results from inactivity or prolonged bed rest. When blood clots restrict the flow of blood they can create a condition known as ischemia which can result in a permanent injury or death.           

Lawyer Malpractice

A pulmonary embolism is a blockage of an artery to the lungs. Blood clots in the veins of the legs, hip or pelvis often times cause this condition. People who have suffered leg injuries or who have surgery are at increased risk. It is therefore vitally important that a blood clot be diagnosed and properly treated as soon as possible. Emergency room doctors, nurses and other medical professionals can often prevent either a blood clot or their devastating effects if they act promptly and provide the proper treatment.            

Blood Clots and Medical Malpractice

There are a great number of conditions that could result from a blood clot which could include:
-                     Stroke
-                     Paralysis
-                     Heart attack
-                     Permanent organ damage
-                     Angina
-                     Death

If you or a loved one has suffered a serious injury or if a death resulted from medical complications associated with a blood clot you should contact our experienced medical malpractice lawyer immediately. 

Blood Clots and Medical MalpracticeAzeroth Daily 20/12/2010 Video Clips. Duration : 13.12 Mins.

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Attorney Richard Hastings, for the past two and one half decades, has been helping injured clients and families collect millions of dollars in losses ranging from motor vehicle accidents to wrongful death, to medical malpractice. He is the founder of Selectcounsel, LLC, a free service that helps you find one of the best lawyers in your area and is the author of the books "How To Find A Great Lawyer" and "Understanding And Improving The Value Of Your Personal Injury Case."

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How to Choose a Lawyer From a Radio Ad

Fact: You are sitting in your car on the drive home from work listening to your radio. You hear a 15 second commercial for an attorney that blasts their 800 number six times in the space of 15 seconds. The number stays in your head for about 2 1/2 seconds and then you continue paying attention to the road and the music you were listening to.

Fact: At that moment, you had no need for a New York accident or medical malpractice attorney. Will you remember that 15 second commercial?

Lawyer Malpractice

Let's assume for a moment that a family member was recently involved in an accident or suffered harm because of a doctor's wrongdoing. Their injuries and disability are weighing heavily on your mind. On the way to work, again while listening to the radio, you hear another ad for an attorney in your area. In the space of 15 or 30 seconds they tell you how long they've been in business and what type of law they handle. Again they blast their 800-number repeatedly in an attempt to get you to memorize it on your drive to work.

How to Choose a Lawyer From a Radio Ad

Ask yourself this question if you've ever heard those lawyer commercials:
"How do I know that this law firm is right for me just based on the 15 second or 30 second ad I just heard?"

Here's another question you should ask: "What information has been provided to me that helps me distinguish this law firm from any other law firm I've seen advertised on TV, in the newspaper or on a billboard?"

In all likelihood, you will be unable to answer those questions.

Here's another question: "What information has the law firm provided to you that helps you understand how they can solve your legal problem?" Other than telling you that they've been in business for 'x' years and that they handle personal injury law, why are they any different from the 10 other law firms you also heard about on your way to work?

The problem is with the message and not the law firm. In the span of 15-30 seconds, it is impossible for anyone to provide you any real useful information that will help you distinguish intelligently how one particular lawyer can help you compared to any other lawyer. You should know that lawyers in NY are not allowed to compare themselves to other lawyers in their advertising. For example, a lawyer cannot say "we're better than John Smith's law firm because..." That type of statement would be unethical, and would land the lawyer a grievance against him. It might also constitute libel or slander.

Does this mean that you should not go to any lawyer who advertises by radio? No, because there may be a lawyer who advertises by radio ads that might be the perfect person to represent you. On other hand, you don't have any real information to help you and guide you to make an intelligent decision about whether that lawyer is right for you.

The bottom line? Radio ads fail miserably to provide you with any useful information that will help educate you when deciding whether a particular law firm is right for you. You need to know that any law from you go to has the ability, experience and the drive to help you in your particular case. How do you find that information out? Not with a 15 second radio ad; that's for sure.

How to Choose a Lawyer From a Radio AdAzeroth Daily 20/12/2010 Tube. Duration : 13.12 Mins.

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Gerry Oginski is an experienced New York medical malpractice and personal injury trial attorney.

Take a look at Gerry's website http://www.oginski-law.com and read his free special reports on malpractice and accident law. Read actual testimony of real doctors in medical malpractice cases. Learn answers to your legal questions. We have over 250 FAQs to the most interesting legal questions. Read about his success stories. Read the latest injury and malpractice news. I guarantee there's something for you. For more information, call him personally at 516-487-8207.

Also, go over to http://nymedicalmalpracticevideoblog.com for Gerry's free instructional videos on medical malpractice, negligence cases, accidents and wrongful death cases in New York.

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Want to Sue a Lawyer? Try These Alternatives to Litigation Before it is Too Late

Are you planning to sue your lawyer because you are not satisfied with his style of working? If yes, it is essential for you to understand that suing an attorney in not the only solution to your problem. In fact, it can even land you in trouble if you fail to prove your claim. Moreover, as such claims are very hard to prove, they often lead to a loss of a lot of time and money. Therefore, it is better to look for alternative options before it is too late.

If you feel your lawyer has not represented you well and has debilitated you during the case proceedings, you are free to sue him/her. However, before considering a legal malpractice claim against your attorney, it is advisable to try the following options to avoid litigation:

Lawyer Malpractice

1) You can replace your attorney with a more competent one in the middle of your on-going case, rather than suing him/her.

Want to Sue a Lawyer? Try These Alternatives to Litigation Before it is Too Late

2) If you want to sue your lawyer because of a fee dispute, it is better to first discuss the matter in detail with your attorney. It is quite likely that things can be sorted out with mutual consent. Alternatively, you can also choose to engage in fee arbitration.

3) If you feel your attorney has violated the professional ethics, it is in your own favor to first report the ethics violations to your state bar association.

However, if you fail to get desired results even after trying the above three options, you may well consider a legal malpractice claim and sue your lawyer. Now, the ball is in your court. It is up to you to take the final decision.

Want to Sue a Lawyer? Try These Alternatives to Litigation Before it is Too LateAzeroth Daily 03/01/2011 Tube. Duration : 13.37 Mins.

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If you would like to try all possible alternatives to litigation, Visit http://www.freelawyertips.com for free expert legal advice on 'Reporting Lawyers for Ethics Violation', 'Arbitration and Mediation', as well as on 'Settling Fee Disputes'.

Also, find out How to Sue a Lawyer?: Get free tips on suing an attorney before considering a legal malpractice claim.

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Find the Right Medical Malpractice Lawyer For Your Medical Lawsuit

If you are wondering how to find the right medical malpractice lawyer for your medical lawsuit, then you need to be assured that even though the task is not easy it is not impossible. A right medical malpractice lawyer would be a person with a lot of exposure and experience that you can leverage upon.

One of the first steps in finding the right medical malpractice lawyer is to make the decision to pursue your case. Also, when you meet the lawyer discuss the costs involved because malpractice cases usually take a lot of time to get resolved and turn out to be quite expensive. Sometimes lawyers discuss their fees or commission upfront but only charge you after winning the case. In some cases you may need to foot part of the bill. Every lawyer or law firm functions differently.

Lawyer Malpractice

The best way to pick a lawyer to fight your case is to go with a person who has a lot of references. No matter which lawyer you go to, medical malpractice cases are expensive to fight so why not go to the best lawyer instead. Many law firms today have their own websites with hundreds of testimonials to read. Research thoroughly about the lawyer or the law firm you are going to and if possible read in detail about the cases they have won and lost. Once you hire a lawyer it is very important to trust and have a working relationship with your lawyer for it to be fruitful.

Find the Right Medical Malpractice Lawyer For Your Medical Lawsuit

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Medical Malpractice Lawsuit, Breach Of Contract

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Medical Malpractice Lawyer Information

Medical malpractice lawyers are those types of lawyers that sometimes have a bad reputation. These are the types of lawyers who some deem as ambulance chasers but to those people who really need these types of lawyers are actually very appreciative of their efforts. There are certain times when people need someone to protect them and fight for their rights and some of those times are during times that people have been wronged through medicine. These types of lawyers are usually very specific and only do this type of work. If you are looking for a lawyer that specializes in medical malpractice you can sometimes find one that works in a large firm. Other times depending on how big your town is you may have a firm that specializes all on medical lawsuits.

If you are unsure what kind of situations mean you need to hire this type of lawyer you can do some research online to look at past cases. Some of these situations come about when a drug that has been taken by an individual causes damage or even death. Other situations can even be when someone goes in for surgery and does not come out alive. If members of the individual who dies during surgery things that a mistake caused the death this would be another situation that calls for this type of lawyer.

Lawyer Malpractice

There are a lot of laws that are in place to insure that drug companies who put products onto the market are putting safe products onto the market. Every once in a while something goes drastically wrong and the drug is having adverse effects on peoples and maybe even cause death. There are very few cases like this that exist but this is what these types of lawyers are used for.

Medical Malpractice Lawyer Information

If you feel you have a case like this there are a few things that you will want to do, even before you contact a lawyer. Sometimes there can be a long time between when you talk to a lawyer and when the incident happened. Because of this you will want to write down all of the details that you can possible think of and make sure you don't leave out a single detail. Any lawyer will want to know these things and the more details you have to give, the better your chances of winning your case. Remember that your lawyer is your friend to help you find justice but you will want to do some research to make sure you are hiring a good one.

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Legal Malpractice

Legal Malpractice Theories of Liability

Legal malpractice is a broad term that encompasses various types of civil liability claims brought against lawyers for breaches of duties owed by lawyers to clients and occasionally to other persons that cause damages. Particular conduct by a lawyer may violate the professional standard of care, disciplinary rules, civil statutes, and even criminal statutes. Such conduct may result in money damages, fee forfeiture, disqualification, and loss of license.

Lawyer Malpractice

Negligence

Legal Malpractice

Lawyers impliedly represent to clients that they possess the requisite degree of skill, learning, and ability necessary to practice law and will exercise reasonable and ordinary care and diligence in applying their skill and knowledge in the representation of clients. Claims for negligence are by far the most common claims brought against lawyers. The traditional elements of any negligence claim are:

1. the defendant owes the plaintiff a duty to exercise care;

2. the defendant breaches that duty of care;

3. the breach of duty proximately caused the plaintiff injury; and

4. damages for such injury.

Lawyers generally owe the duty to exercise care only to clients, and not to third parties. The Texas Pattern Jury Charges defines professional negligence to mean the "failure to use ordinary care, that is, failing to do that which an attorney of ordinary prudence would have done under the same or similar circumstances or doing that which an attorney of ordinary prudence would not have done under the same or similar circumstances." Proof of the standard of care and of the breach thereof typically requires expert testimony of an attorney.

Breach of Fiduciary Duty

Lawyers are fiduciaries, and as such owe clients the duty of utmost loyalty and are obligated to render a full and fair disclosure of all facts material to the clients' representation. Lawyers thus owe a duty of good faith and fair dealing with their clients and all dealings between lawyers and clients must involve full integrity and fidelity by the lawyers. Lawyers must place the interests of the clients before the interests of the lawyers or of other persons, including other clients. Failure in the duty of full disclosure is tantamount to concealment. Clients justifiably rely on the integrity and fidelity of their lawyers.

The fiduciary duties of lawyers include, inter alia, avoiding impermissible conflicts of interests, safeguarding client confidences and property, disclosing fully all material information, following client instructions, and not engaging in activities adverse to the clients. When a client alleges that a lawyer has breached fiduciary duties, a presumption of unfairness arises and the lawyer bears the burden of proof to that the fiduciary duty was complied with perfect fairness, adequacy, and equity.

Fraud

Fraud consists of a false representation of a material fact, known to be false or made recklessly without any knowledge of its truth, made with the intent that another party would act upon the representation, upon which such other party reasonably relies thereby suffering injury. Lawyers may be held responsible in damages for defrauding their own clients; lawyers may also be liable for committing fraud upon third parties. Fraud may also arise where a lawyer has a duty to disclose certain information and fails to do so, to the detriment of the client.

Conspiracy

Lawyers engaging in a civil conspiracy may be liable to clients and to third parties. A civil conspiracy consists of a combination of two or more persons with a specific intent to accomplish an object or course of action that is an unlawful purpose or a lawful purpose by unlawful means where there has been one or more unlawful, overt acts in furtherance of the object proximately resulting in damages. Thus, a lawyer may be liable for conspiracy for knowingly agreeing to defraud a third person. Each co-conspirator is legally responsible for all acts done by any of the co-conspirators in furtherance of the conspiracy.

Deceptive Trade practices

The Texas Deceptive Trade Practices - Consumer Protection Act (DTPA) only applies to lawyers for claims for damages not based on the rendering of legal services the essence of which is the providing of advice, judgment, or opinion. The DTPA does however apply to express misrepresentations or unconscionable acts that cannot be characterized as advice, judgment or opinion. The advantages of pursuing a DTPA cause of action are a somewhat lesser standard for proving causation of damages and the potential of recovering multiplicative damages and attorney's fees.

Legal Malpractice Remedies

Causation

A plaintiff in a negligence or breach of fiduciary duty legal malpractice action must prove that the breach of duty by the lawyer proximately caused the plaintiff's injury, resulting in damages. Not all negligent acts or breaches of fiduciary duty by lawyers actually cause injury. Proximate cause entails foreseeability and cause in fact. Foreseeability contemplates that the lawyer should have anticipated the risk to the client by the negligent act. Cause in fact requires that the negligent act or omission be a substantial factor in causing the injury without which the harm would not have occurred. Proof of causation in legal malpractice cases usually requires the expert testimony of an attorney to link the breach of duty to the injury caused thereby.

The Texas Jury Pattern Charges defines proximate cause as that "cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that an attorney using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event."

Damages

The most common remedy sought by clients from their former lawyers is the recovery of damages occasioned by the negligence or other breach of duty by the lawyer. The traditional method of establishing damages when a lawyer negligently represents a client is to prove the "suit within a suit." The plaintiff must prove that but for the lawyer's negligence, the plaintiff would have recovered judgment in the original case, the amount of that judgment, and that any such judgment would have been collectible. In the case where the lawyer malpracticed a defendant's case, the client must prove that but for the lawyer's negligence, the client would have prevailed on a meritorious defense. The "case within a case" standard of proof however may not be required in breach of fiduciary duty and DTPA cases.

In other legal malpractice cases not involving underlying litigation, traditional rules on damages provide that the client may recover all foreseeable damages caused by the lawyer's wrongful acts or omissions. And, exemplary damages may be recoverable for lawyer fraud or for other wrongful acts committed with malice.

Fee Forfeiture

A lawyer engaging in clear and serious violation of duty to a client may be required to forfeit some or all of the lawyer's compensation in the matter, even if the client suffered no actual harm by virtue of such violation. Typically, fee forfeiture cases are premised on allegations that the lawyer committed a serious breach of fiduciary duty or fraud. In the trial a fee forfeiture case, a jury will consider whether the lawyer committed the violation claimed, and the trial judge will determine whether such violation is clear and serious and, if so, the amount of the fee to be forfeited.

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Steve Smoot, Smoot Law Firm, P.C., 8303 Southwest Freeway Suite 718, Houston TX 77074 (713) 655-1441 http://smootlawfirm.com

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