Learning Outcomes
After reading this article, you will be able to identify the legal standard of care for professional people, distinguish how negligence is assessed for professionals compared to non-professionals, and apply the rules for breach and liability in professional malpractice scenarios. You will also be able to answer MBE-style questions on professional negligence with confidence.
MBE Syllabus
For MBE, you are required to understand how negligence applies to professional people, including the specific standard of care, breach, and liability for professional malpractice. This article covers:
- The professional standard of care and how it differs from the ordinary reasonable person standard.
- How breach is determined for professionals, including the role of custom and expert evidence.
- The circumstances under which professionals may be liable for negligence.
- The application of these principles to common professions tested on the MBE (e.g., doctors, lawyers, accountants, architects).
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following best states the standard of care for a professional person in a negligence action?
- The care of an average person in the community.
- The care of a reasonable person with the same training and skill as the defendant.
- The care of a reasonable person under the circumstances.
- The care of a person with superior knowledge, regardless of profession.
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In a medical malpractice case, which of the following is most likely required for the plaintiff to establish breach of duty?
- Direct evidence of the defendant’s intent.
- Testimony from a lay witness about what the doctor should have done.
- Expert testimony about the accepted practice in the profession.
- Proof that the defendant violated a criminal statute.
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A lawyer fails to file a client’s lawsuit before the statute of limitations expires. The client loses the right to sue. Under what circumstances is the lawyer liable for negligence?
- Only if the client can prove the initial case would have succeeded.
- Only if the lawyer acted with intent to harm the client.
- If the lawyer’s conduct fell below the standard of a reasonably competent lawyer.
- Never, because lawyers are immune from negligence claims.
Introduction
Negligence claims against professional people—such as doctors, lawyers, accountants, and architects—are a frequent topic on the MBE. Professionals are not judged by the ordinary reasonable person standard. Instead, they are held to the standard of care and skill expected of a reasonably competent member of their profession acting under similar circumstances. Understanding how this standard is applied, and how breach and liability are determined, is essential for answering MBE questions on professional negligence.
The Professional Standard of Care
Professionals are required to exercise the level of knowledge, skill, and care that is ordinarily possessed and exercised by other members of their profession in good standing, under similar circumstances.
Key Term: Professional Standard of Care The level of care, skill, and diligence exercised by a reasonably competent member of the same profession, acting under similar circumstances.
This standard is objective. It does not depend on the individual’s actual experience or skill, but on what is expected of a typical professional in that field.
Comparison with the Ordinary Person Standard
Non-professionals are judged by the "reasonable person under the circumstances" standard. Professionals, however, are compared to the hypothetical "reasonably competent professional" in their field.
Key Term: Malpractice Negligence by a professional person, judged by the standard of care of the profession rather than the ordinary person.
Custom and Expert Evidence
In most professional negligence cases, the standard of care is established by evidence of what is customarily done by other professionals in the field. Custom is highly persuasive, and deviation from custom is usually required to prove breach.
Key Term: Custom (in Professional Negligence) The typical or accepted practice among professionals in a given field, used as evidence of the standard of care.
Expert testimony is generally required to establish both the standard of care and whether the defendant breached it, unless the negligence is so obvious that laypeople can recognize it without expert help (e.g., leaving a surgical instrument inside a patient).
Breach and Liability
A professional breaches the duty of care if they fail to act as a reasonably competent professional would under similar circumstances. Breach is usually shown by expert evidence that the defendant’s conduct fell below accepted standards.
Professionals are not liable for mere errors of judgment if they exercised reasonable care and skill. However, if the error results from a failure to use the knowledge, skill, or care expected of the profession, liability may arise.
Special Rules for Certain Professions
Medical Professionals
Doctors and other healthcare providers are held to the standard of care of a reasonably competent practitioner in the same field, under similar circumstances. Informed consent is also required: doctors must disclose material risks of a procedure, unless the risk is commonly known, the patient is unconscious, or disclosure would harm the patient.
Legal Professionals
Lawyers must act as reasonably competent attorneys would under similar circumstances. Failure to file documents on time, missing deadlines, or giving incorrect legal advice may be malpractice if a reasonably competent lawyer would not have made the same error.
Accountants, Architects, and Others
Other professionals are judged by the same principle: what would a reasonably competent member of the profession have done? Custom and expert evidence are usually required to establish the standard and breach.
Worked Example 1.1
A patient sues a surgeon after suffering complications from an operation. The patient claims the surgeon was negligent in choosing a particular surgical method. At trial, both sides present expert testimony about the accepted methods in the profession. The jury finds that the surgeon’s choice was consistent with accepted practice, even though the outcome was poor. Is the surgeon liable for negligence?
Answer: No. If the surgeon’s conduct was consistent with accepted professional practice, there is no breach, even if the outcome was poor. Professionals are not guarantors of results.
Worked Example 1.2
An accountant fails to detect a clear error in a client’s financial statements, resulting in a significant tax penalty for the client. The client sues for negligence. At trial, expert testimony establishes that a reasonably competent accountant would have detected and corrected the error. Is the accountant liable?
Answer: Yes. If the accountant’s conduct fell below the standard of a reasonably competent accountant, and this caused the client’s loss, the accountant is liable for professional negligence.
Exam Warning
On the MBE, do not confuse the professional standard of care with the ordinary reasonable person standard. Professionals are judged by the standard of their profession, not by what a layperson would do.
Revision Tip
In most professional negligence cases, expert testimony is required to establish both the standard of care and breach. Only in rare, obvious cases can a jury decide breach without expert evidence.
Key Point Checklist
This article has covered the following key knowledge points:
- Professionals are held to the standard of a reasonably competent member of their profession, not the ordinary person.
- The standard of care is established by custom and expert evidence.
- Breach is shown by proving the professional’s conduct fell below accepted standards.
- Expert testimony is usually required to establish both the standard and breach.
- Professionals are not liable for mere errors of judgment if reasonable care and skill were used.
- Special rules apply for informed consent in medical cases.
- Liability requires proof of causation and damages, as in other negligence claims.
Key Terms and Concepts
- Professional Standard of Care
- Malpractice
- Custom (in Professional Negligence)
