Malpractice is a type of tort in which the misfeasance, malfeasance or nonfeasance of a professional under a duty to act fails to follow generally accepted professional standards. It is committed by a professional or her/his subordinates on behalf of a client or patient that causes damages to the client or patient. Perhaps the most publicized forms are medical malpractice and legal malpractice by medical practitioners and lawyers respectively, though accountants, dentists, company CEO's, investment advisors and other professional service providers can fall under the malpractice umbrella. The malpractice umbrella can also be extended in the form of educational malpractice as well.

A Law Definition of Malpractice:

Failure to provide professional services with the skill usually exhibited by responsible and careful members of the profession, resulting in injury, loss, or damage to the party contracting those services. Though accountants, lawyers, and other professionals can be charged with malpractice, the term is most commonly associated with medical professionals (e.g., doctors, nurses, hospital technicians.) Most medical malpractice suits are for negligence on the part of medical professionals in providing expected level of care. In recent decades, partially as a consequence of medical costs, there has been a considerable expansion of medical malpractice suits. This has led to vastly higher rates for malpractice insurance, and, some observers contend, a “defensive” approach to medicine in which medical personnel are unwilling to order any potentially risky procedures, and protect themselves against subsequent legal action through excessive patient testing.

There have been a number of proposed solutions to the increasing burden of malpractice costs, including compensation boards, no-fault statutes, limits on the amount of damages available in various malpractice suits, and an annual limit on the amount that malpractice insurance premiums can increase. Under the Employment Retirement Income Security Act (1974), managed-care organizations are protected from claims for damages resulting from a denial of benefits.

Medical malpractice

Medical malpractice is a broad term which covers both the public perception of adverse events during medical care, and a legal definition of negligence.

In common with other forms of civil claims for negligence, in order to succeed in a claim (lawsuit) the claimant (plaintiff) must successfully demonstrate two things:

A: That the doctor failed in his/her duty of care towards the patient: they failed to do something that a reasonable person in similar circumstances would have done, or they did something that a reasonable person would not have done

B:That some harm was caused by this failure to comply with the duty of care

Expert witnesses usually testify in malpractice cases. These witnesses are generally independent experts from the same field of medicine as the defendant. A doctor will not be expected to be the best doctor in the country, but he or she must be shown to have acted in accordance with a reasonable body of medical opinion. This is known as the Bolam Test.

Educational Malpractice

Malpractice in the field of education has traditionally not been recognized, apparently due to the difficulty in relating teaching methods to outcomes in individual cases.

There would seem to be a political conflict of interest based on the various teaching methodologies and goals individual teachers or schools use. Proponents of behaviorism for example, may make no attempt to help students recognize or develop their self or learn about the historical context in which they will live.