D.C. Personal Injury Lawyer & Attorney : Gabriel Assaad : Assaad Law, PLLC: D.C. Injury Law Journal

Legal malpractice may occur where a lawyer acts in a negligent manner when providing legal advice or representation.

The Elements of Legal Malpractice

Typically, to prevail in a legal malpractice case, a plaintiff must prove all of the following:

·         The existence of an attorney-client relationship;

·         Negligence in the legal representation of the plaintiff;

·         That the negligence was a proximate cause of an injury;

·         The fact and extent of the injury alleged.

In many legal malpractice actions, there may be discussion of whether the plaintiff could win the "case within a case". This discussion occurs in malpractice cases involving prior litigation, where a plaintiff claims to have either lost or to have recovered a smaller amount of damages than warranted by the facts and law, as a result of the original lawyer's malpractice.

In order for the plaintiff to establish that damages were suffered as a result of the alleged malpractice, it is often necessary for the plaintiff to prove that, but for the malpractice, a favorable verdict would have been won or greater damages recovered. In essence, this is a retrial of the original litigation within the context of the malpractice action - a case within a case.

Proving Legal Malpractice

As the elements outlined above suggest, the first thing a plaintiff must do in order to prove legal malpractice is to establish that an attorney-client relationship existed, without the relationship, the lawyer doesn't have any duty to the client, and there is no basis for a malpractice action.

The plaintiff must then establish the "standard of care" which governed the legal representation, and show that the attorney violated that standard of care. Sometimes this is easy, and may not even require any expert testimony. However, as legal representation is often complex, it is often necessary to use an expert witness to establish the governing standard of care, and to describe how the lawyer violated that standard of care.

Next, it is necessary to demonstrate that the plaintiff suffered an injury as a proximate result of the lawyer's negligence. That is, that the injury followed from the lawyer's misconduct.

Finally, the plaintiff must ordinarily establish that damages actually were suffered as a result of the legal malpractice, and the nature and amount of those damages. Even if all other elements of a malpractice case are established, if the plaintiff cannot show that any damages resulted from the legal malpractice the lawyer will typically be entitled to a dismissal of the case.

About the author:

Gabriel Assaad has successfully litigated multiple cases on behalf of injured victims in the District of Columbia, Virginia and Maryland.  Mr. Assaad graduated from a top 20 law school and is a member of national and local organizations dedicated to protecting the rights of the injured.  In addition, Mr. Assaad also volunteers as General Counsel to Mission Life Center which provided services (medical and social services) to people in need and Care in Action, an international organization providing AIDS care in Africa.

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A doctor in Maryland uses scare tactics to convince citizens that medical malpractice reform is necessary.  In an editorial in the Baltimore Sun, Dr. Hass wrote:

At a time when the nation's economy is slumping and the governor is proposing to mandate that Maryland hospitals and physicians provide more free care to lower-income families, it's ironic that the state House Judiciary Committee, led by trial lawyer Joseph F. Vallario Jr., is proposing legislation to roll back the reforms in the state's medical malpractice insurance policies enacted in 2004 ("Attack of the trial lawyers," editorial, Feb. 17).

Such a rollback would ultimately result in higher malpractice insurance rates for doctors and hospitals, higher health care costs for consumers, higher health insurance premiums for businesses and, of course, higher incomes for well-heeled trial lawyers.

Perhaps the "attack" of these lawyers on physicians and hospitals will only abate when enough doctors have left Maryland and enough hospitals have closed that they no longer have anyone left to sue.

There is numerous articles that have discredited the fallacy that medical malpractice lawsuits cause higher medical malpractice premiums, health care costs to consumers, and an exodus of doctors from sates.  In fact, look at California, they have had medical malpractice caps for over 20 years and there is no change compared to other states that have not passed tort reform.

In DC, there are no caps.  The last time I checked, there are no shortage of doctors or exodus.  In fact, the DC Metro area is overly saturated with physicians to the point where physicians' salaries are less here than many other parts of the country for a lack of demand.  With respect to higher premiums, if you look at the data, medical malpractice cases account for less than 1% of the health care costs in the country. 

The author's use of attack is indicative of the lack of facts to support the position taken by thus doctor.  This doctor should look at the insurance companies as for the cause of higher premiums an look at the insurance companies books before he blindly blames the "attacking" lawyer.

I suggest to this doctor or anyone who has the same viewpoint to pray that no one in their family is on  the receiving end of being malpracticed upon.

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