Negligence and Professional Malpractice
The professionals that we hire to do work for us have a duty in law to perform their work to the standard of care a competent person in the same profession. As an example this means that an electrician must adhere to the minimum standards of the BC Building Code and exercise the knowledge, skill, and due diligence expected of someone who has completed education and training in being an electrician. You would expect your mechanic to properly maintain and service your vehicle – and the law provides a remedy if they fail to properly change the oil and your engine subsequently breaks. If your accountant fails to file your tax return on time and you incur late penalties and interest that expense should be borne by your accountant, not by yourself. The most frequent professionals that have a claim rise against them include lawyers, accountants, real estate agents, home inspectors, and doctors.
However the law is broader and imposes an obligation for all persons to exercise reasonable care and skill when they have the potential for their acts or omissions to harm you. If you get injured in a motor vehicle accident you actually are making a claim in negligence against the other driver for failing to drive carefully – in other words breaching the standard of care expected of other motorists. Some other examples of negligence that do not involve a professional that you directly hire are product liability cases. For instance, if you purchase a smoke detector but it doesn’t work because of shoddy manufacturing standards then you have a case in negligence against the manufacturer.
Except in some well-established cases, such as motor vehicle accidents, an expert is required to establish what is the standard of care expected of the person who has caused you harm. If you have a claim against a dentist, you need to show that they acted below the level that a reasonably competent dentist would have. The standard of care however is not perfection and it is not what would have occurred with the benefit of hindsight. For professions that have to use their best judgment, such as doctors and lawyers, just because the professional makes a mistake does not automatically mean that they breached the standard of care. In other words, the law recognizes that in some professions there is no one correct and exact answer and that even a reasonable profession may make mistakes. However this does not mean that every action made by a professional is immune from liability – if a lawyer fails to file a claim within the limitation period, or a doctor fails to follow an established diagnostic protocol, those actions will support a claim in professional malpractice.
A common feature in many negligence and professional malpractice cases is that the injured party waits too long and their limitation period has either expired, or it is questionable whether it has expired. This often arises for a few reasons.
The first is that often the professionals that we most often deal with, such as doctors and accountants, are ones that we have a relationship with and are not just people we have only recently met. This existing relationship may make it difficult for the client to consider advancing a claim, and may also make it difficult for the professional to disclose their error as they often think that they can fix it themselves. The second large reason, is that the average person will not have the knowledge to understand if there’s been an error on the part of the professional. Often we hire these professionals because we do not have the expertise to do the work ourselves – and as such their work product is outside our ability to gauge if it is done well or not.
To give an extreme example, if an engineer errs in calculating how large the footprint of a high-rise needs to be in order for it to meet construction safety standards, that is only something another engineer will be able to determine. Absent extreme weather events, home owners will be completely oblivious. The home owners may only find out about this error maybe decades later when a depreciation report is conducted by a savvy engineering firm.
The most important step is to call our office to determine if your limitation period is over, or whether it has even begun. Many people think that they can only sue for acts or omissions that occurred in the last two years. The Limitation Act is unfortunately far more complicated than that and there are rules for when a claim is discovered.
Documentation is also an important part of preparing your case to go to trial or possible resolution – however the documentation that you really need may not be in your possession, and may not be something that you can even gather by yourself. For instance, you are extremely unlikely to have any first-hand knowledge as to how the plumbers installed the plumbing line in your home aside from whether it was PEX, copper, or PVC. You are extremely unlikely to have any photographs during the installation process or know whether the installation was done according to code. However if you hire another company to inspect it and provide an expert opinion then you will have an important document in your case.
Too often we hear people that have incurred substantial expense to repair the construction work done by a previous professional. Once the defect has been cured, all opportunities to record and document what the previous person did are over. This makes it much more difficult to prove your case in negligence. Accordingly, it is very important that you talk with us so we can make sure you take steps to preserve the best possible evidence. As soon as you can identify the problem we recommend taking ample photographs and videos of it from all angles with great lighting and a slow pan so that you can stop and zoom in on particular areas. You can never have too much video.
Our negligence lawyers handle negligence and professional malpractice cases from investigation all the way through trial. Most of our clients are on the Plaintiff side, however we do assist individuals and businesses whose insurance has denied them coverage, leaving them responsible for the costs of their own defence and any eventual award made against them. If you have been denied coverage by your insurance company we will review options to claim for coverage and all related legal fees.
The biggest role that negligence lawyers have in this area of law, compared to others, is conducting an effective discovery and also retaining the right experts for your case. A discovery is the process where you are able to conduct a pre-trial examination of the other side to force their hand, as it were. There are many strategies for conducting an effective discovery, but in cases where only the other side knows what they did and did not do, it is critical to obtain their admission of their own shortcomings as the Plaintiff still has the burden of proof.
Almost every professional malpractice trial requires an expert to give evidence as to what is the standard of care expected of that profession in the circumstances of your case. Unless the error is obvious, the Courts have consistently stated that this is an area that requires the opinion of experts. It is also often the case that the other side will get their own expert who will inevitably say that they did not breach the standard of care. At trial, we of course become well versed in their specialties so we can discredit the opposing side’s expert.
The other most common defences in negligence cases is that the harm you experienced was not directly caused by the negligent action or omission, or that the harm went beyond what it should have because you failed to mitigate your damages. For example, in a leaky condo case, the Defendant will usually argue that any damage to the building envelope could have been avoided altogether if you paid attention to the fact there was water ingress around windows and patio doors, and that because you didn’t act quickly to address those leaks that the resulting damage is your own fault.
We have ample experience prosecuting negligence and professional malpractice actions and beating defences raised by insurance companies so that you can be made whole.
Unless the error by the professional is obvious then you can expect that the case will not be resolved quickly. Absent a court proceeding, the other side has few obligations to turn over their professional work product for you to review. The vast majority of professionals also carry compulsory errors and omissions insurance. Some insurance companies take a very aggressive stance on defending their members while others look at cost savings. It is not atypical to only get a nominal settlement offer prior to filing your case in Court, or sometimes even only weeks before the trial.
We will work with you to make sure you preserve the evidence that you need in order to prove your case, that the other side provides their full file and truthfully answers questions in discovery, and that we retain the right experts to both prove liability and also to quantify your damages.
If the injury or damage that you suffered is still on going, such as the case of medical malpractice, the case will generally not be appropriate to push to resolution unless your prognosis has stabilized. Otherwise the negative contingencies that the court places on court judgments that are calculated to compensate you for ongoing and future injury will be substantial and may result in an inadequate award.
Professional malpractice and negligence are generally offered on either an hourly rate, a contingency rate, or a combination of the two. A retainer to cover the cost of disbursements, including experts, is usually required. Expert reports can be very expensive as often the case professionals in the same area do not want to testify against each other and so you may need to bring someone from another Province or the States. However, the overwhelming number of negligence and professional malpractice cases are heard and tried in Supreme Court, so if you are successful you will almost always get reimbursed for the cost of the expert report and will be entitled to costs, which should offset a healthy portion of your legal fees.
Because several insurance companies that defend professionals take very aggressive approaches to liability as well as the amount of your damages, it is difficult to predict the cost of proceeding to trial. Insurance companies may engage in a war of attrition and require you to bring an application at every stage of the case instead of trying to resolve disputes in a cost-effective manner. They may also bring numerous pre-trial applications themselves to try and defeat or limit your claim, and subsequent appeals of those decisions.
Contact us either at (604) 259-6200 or using the form below for assistance with Negligence and Professional Malpractice
The foregoing provides legal information and does not constitute legal advice. As an analogy, legal information are equivalent to learning the rules of chess, and legal advice is the tactics and strategy that goes into winning a game. Lawyers are trained to give valuable advice that is specific to you after learning about the details of your case. Readers are cautioned that they will rarely achieve the best outcome for their case without actual advice. A consultation is often the best next step to take.