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Today, we take it for granted that certain professionals have a responsibility to their patients or clients. And that when professionals fail in their responsibility, patients and clients have the right to pursue a claim of malpractice. So what precisely is malpractice?
What is malpractice?
There are many types of relationships, and malpractice can only occur in one particular type. In legal terms, this relationship is known as “fiduciary.” A fiduciary relationship involves one party placing a large amount of trust in another party, and it’s different from an ordinary business relationship.
The key to understanding the difference between an ordinary customer business relationship and a fiduciary one is in the phrase, “in the best interests.” Whose best interests are primary in the business relationship?
In an ordinary business relationship, both parties are acting in their own best interests. When we walk into a grocery store, for example, we know the main purpose of that store is to make money. We are responsible for our own interests, which is why we compare costs and browse before we buy or go to a different store if we’re not satisfied.
In a fiduciary relationship, the situation is quite different. In this case, the law recognises that the fiduciary is being paid to apply their expertise entirely on the behalf of a client or patient.
A fiduciary cannot act in a way that benefits themselves, benefits a third party, or that mitigates against the best interests of their client or patient. This can happen when a fiduciary neglects a responsibility, fails to give important information, or even deliberately misleads or steals. When a fiduciary does anything like this, it is known as malpractice.
Types of fiduciary relationships
Some of the most common fiduciary relationships are medical, financial, and legal. When we visit a doctor, we are paying for the doctor to leverage expertise and experience entirely on our behalf. When we work with a financial broker or an attorney, we are doing the same thing.
Any excellent medical training program, such as an RN-BSN program, will teach more than just medical knowledge. It will also help students grasp their duty to always act in the best interests of a patient. The same kind of training happens to anyone studying law or hoping to work as a financial advisor or broker.
When malpractice occurs
We understand the ins and outs of malpractice, particularly in the medical and financial fields, better now in part due to the work of experts like Howard Fensterman. We are now more aware of what malpractice is and what to do about it. To pursue a malpractice lawsuit, you must be able to prove three things:
- Duty: The defendant either acknowledged or should have known that they had a fiduciary duty to the plaintiff.
- Breach of duty: That defendant failed in their duty in some way.
- Damage: The plaintiff suffered verifiable damage as a direct result of the breach of duty.
No one wants to be the victim of malpractice, and there are some steps you can take to make it less likely:
- In any fiduciary relationship, be proactive about your own interests. Keep track of what’s going on and ask lots of questions.
- Don’t be intimidated by industry speak. If you don’t understand something, ask.
- Keep up communication. Don’t let years pass without communicating with your fiduciary.
- Don’t be afraid to change. It’s always your right to get a new doctor, broker, or lawyer. If something doesn’t feel right, go with your gut.