By Eoin P. Campbell, LL.B., Solicitor
The term “professional negligence” is a complicated one to define. It relates to any professional occupation that has a duty of care to its clients, where the professional has been neglectful in his duties and the client has consequently suffered some form of loss – in most cases physical or financial. However, professional negligence does not apply, for example, where you may have put money into an investment which subsequently fails, if the person who has advised you to make the investment had performed all the due diligence necessary beforehand.
What Occupations could Professional Negligence apply to?
A comprehensive list of occupations would be hard to compile, as any professional whose services you contract owes you a duty of care. Where you have engaged a professional to provide a service for you, or where a service is assumed (such as with medical care ), professional negligence applies when that provider does not perform their duty with an appropriate level of skill and within a reasonable time. Occupations most commonly cited for demonstrating professional negligence include:
The Medical Profession
Possibly the most frequent professional negligence cases involve medical professionals who have either failed to act – or omitted to act – with the duty of care that is required for a patient. Professional negligence can also be applied to a registered medical practitioner who fails to communicate important issues to a colleague or patient or display unacceptable behaviour. The resulting physical trauma that may be experienced by a patient can lead to complex lawsuits which, unlike personal injury claims, have to be dealt with by a court.
The Legal Profession
Solicitors and barristers also have a duty of care to their clients which would be breached by a failure to communicate important issues or display unacceptable behaviour. Although the consequences of professional negligence by a member of the legal profession may not be as life threatening as those when a duty of care is neglected in the medical profession, the implications of missing a deadline or failing to give adequate professional advice may cause a client lifelong financial or psychological suffering.
The Financial Profession
Although mentioned above that you would not be able to claim compensation for professional negligence against a financial advisor whose suggested investments failed to perform, if that financial advisor had himself failed to perform in making all due diligence checks on the investment or declined to disclose the potential for loss, then he would be negligent in his duty of care. This lack of care would also represent professional negligence if you were mis-sold a financial product such as an endowment mortgage or pension which subsequently lost you money.
The Building Profession
Within the housing market, professional negligence can be demonstrated by conveyancers, architects, surveyors and property valuers when they fail to perform their duties to acceptable standards and the consequences cost you money. The same principles can apply to estate agents – both domestic and overseas – and building contractors who also have a duty of care to advise you of any risks undertaken in the performance of their duties. They are liable should their lack of care mean that you suffer a financial loss.
When Can I Claim Compensation for Professional Negligence?
You can claim compensation for professional negligence when the professional you have contracted to provide a service fails in their duty to provide that service through negligence. It has to be shown that the standard of work or service provided by that professional was worse than you would reasonably expect from a professional working in the same circumstances of your case, and that you have indeed suffered a loss.
This last point can be the hardest to prove, as there has to be evidence to suggest that you are worse off than if the professional had performed with due skill and diligence. In cases of medical negligence, it has to be shown that the actions taken by a registered medical practitioner which led to an injury were avoidable, and that your injuries would not have occurred if an alternative course of action had been taken.
Where financial loss is concerned, it is not sufficient to use hindsight to claim that an advisor had demonstrated professional negligence. You also have to show that at the time there were other options available which, with due care and attention, the advisor would have recommended to you instead. The same applies to property valuations and services provided by industry professionals if you have lost money on a property transaction -and even legal professionals, when they have advised you to act in a certain way.
How Do I Claim Compensation for Professional Negligence?
If you fulfil the criteria above, and have suffered a physical or financial loss due to professional negligence, it is in your best interests to contact a specialist professional negligence solicitor. A solicitor will be able to go through the circumstances surrounding the professional negligence, advise you whether you have a claim for compensation which it is worth your while to pursue, and give you helpful and practical advice on the procedures you will need to follow to make a successful claim for professional negligence.
In instances of alleged medical negligence, a solicitor will need to have access to your medical records and you may be required to undergo an examination by an independent physician before your case is brought to court. Once in the court system, you may even have to undergo a further examination to satisfy the demands of the court or, when a child is involved, give your consent for them to experience what may be more physical and psychological trauma.
In financial and legal matters, you should have retained any relevant contracts and documentation that support your claim, and give your solicitor access to them in order that he can organise an independent assessment with a professional from the same occupation. This will enable him to gauge the strength of your claim and advise you of the likelihood of your success – allowing you, in turn, to decide whether you wish to continue claiming compensation for professional negligence.
How Much Does it Cost to Claim for Professional Negligence?
Because of the number of different scenarios under which compensation for professional negligence can be claimed, it is impossible to put a figure on any initial costs of medical examinations or professional assessments. Your solicitor´s fees and court costs are usually paid by the negligent party or their insurance company, but there may be some additional costs in the preparation of your case which your solicitor will be able to advise you about when you first contact them.
If you feel that you have been the victim of professional negligence, once any threats to your long term health are taken care of, it is important that you speak with a solicitor without delay. Many cases of professional negligence are bound by the Statute of Limitations, and you may only have a limited period of time in which to make a claim for compensation.
We have assembled a panel of experienced Irish solicitors, many of whom have contributed to this website, or who staff our free advice line. You can contact them with your enquiry about professional negligence on 1 800 283 032 between 8am and 10pm – seven days a week. Alternatively, you can provide your name and number in the call back box below, and a solicitor will call you back at a suitably convenient time. There will be no charge or obligation for this initial call and you will receive impartial and accurate advice about your potential case.
- The term professional negligence relates to any industry in which a professional fails in his or her duty of care towards you.
- Members of the legal, medical, financial and building professions are all examples of where professional negligence may occur.
- You can claim compensation for professional negligence if it can be proven that you have suffered a loss if the service you received was less than that which would be reasonably expected.
- Claims for professional negligence compensation can cover both financial and physical loss, but in the case of the latter, it is important that you take care of your long-term health first.
- Thereafter, consult with a solicitor on our free advice service about making a compensation claim for professional negligence.
Copyright © 2009-2015 Eoin Campbell
About the Author
Eoin P. Campbell is an honours law graduate (LL.B) and qualified solicitor whose primary professional experience is in the area of litigation and in particular personal injury claims. Eoin P. Campbell is currently lecturing in law at two universities in Lyon, France.