Professional Negligence: everything you need to know

Professional Negligence, also known as professional misconduct, refers to the failure of a professional to perform their duties competently and in accordance with the standards of their profession, resulting in harm or damage to a client, patient, or other party.

This negligence typically involves a breach of the duty of care owed by the professional to their client or patient.

Professional negligence can occur in various workplaces when people enlist the services of professionals to perform tasks on their behalf. A claim of professional negligence can be made against anyone considered to have expertise in the services they provide; for example, a doctor, a consultant, an architect to name a few.

Determining whether you have a professional negligence case typically involves assessing whether certain elements are present.

1.) There must be some loss or damage of a recognised kind sustained to the claimant.

2.) There must be a breach of duty of care owed by the defendant to the claimant. This involves determining whether the defendant’s actions or inactions fell below the standard of care expected in their profession. This could be errors, mistakes, negligence, or failure to adhere to industry standards.

3.) Evaluation of whether the professional’s breach of duty caused the harm which could result in damages being awarded by a judge. A direct link must be established between the professional’s actions and the harm suffered.

4.) There must be proof that the damage suffered was reasonably foreseeable – i.e. not too remote.

When awarding damages (commonly in the form of a monetary payment), the aim is not to punish the defendant, but to compensate the injured party – ie the claimant. Here are some of the damages that can be awarded by the courts in claims for damages for professional negligence.

Compensatory damages:

These are intended to compensate the claimant for the actual losses or harm they  have suffered as a result of the professional’s negligence. Compensatory damages may include:

Economic damages: These cover financial losses such as lost income, medical expenses, property damage, and other tangible costs incurred due to the negligence.

Non-economic damages: These are more subjective and may include compensation for pain and suffering, emotional distress, loss of enjoyment of life and other intangible losses.

Restitution:

This involves the return or reimbursement of any fees or payments made to the negligent professional for services that were not properly rendered or that caused harm.

Legal Costs and Expenses:

Successful claimants may be entitled to recover their legal costs and expenses associated with pursuing the claim including solicitor’s fees, court costs, and expert witness fees.

Mitigation:

Claimants are generally expected to take reasonable steps to mitigate their losses. However, if the professional’s negligence prevents or hinders the claimant from mitigating their losses, they may be entitled to recover damages for the loss of opportunity to mitigate.

The primary limitation period for professional negligence claims is six years from the date when the cause of action occurred. This means a claim should be commenced i.e., proceedings issued six years from the negligence date or when the loss was suffered to file a claim.

Exceptions exist to this primary limitation period. For instance, if you were not aware of the negligence or loss initially, and the primary limitation period has expired, you may have a further three years from the date that you knew, or reasonably ought to have known of the negligence. This is known as the secondary limitation period, or the discovery period.

You may have three years from when you discovered it to file a claim, known as the ‘discovery period’.

Additionally, there is a long stop limitation of 15 years from the negligence or loss date. This means that even if you were not initially aware of the negligence or loss, you cannot file a claim after 15 years.

In clinical negligence cases, the standard three-year limitation period does not start until the child turns 18. Once they turn 18, the limitation period begins, and they have three years from their 18^th birthday to initiate or pursue the claim themselves.

If the professional is insolvent or has limited assets, you can still file professional negligence claim. However, recovering damages may be more challenging in such cases and a considerable amount of time and money could be spent to obtain a Judgment which is not enforceable.

Yes, professional negligence claims can often be settled outside of court through negotiation or alternative dispute resolution methods such as mediation or arbitration. This can save time and money for all parties involved and may result in a mutually acceptable resolution. It is advisable to consult with a legal professional experienced in professional negligence claims to determine the best course of action for your specific situation.

If you suspect professional negligence, you should consider taking these steps:

1.) Gather evidence: collect all relevant documents, emails, contracts, invoices and any other correspondence related to the professional’s services.

2.) Review Contracts and Agreements: carefully review any contacts or agreements you have with the professional to understand their obligations and your rights.

3.) Discuss your concerns: Schedule a meeting or communicate in writing with the professional to express your concerns and give them an opportunity to address the issue.

4.) Seek a second opinion: If applicable seek a second opinion from another professional in the same field to evaluate whether there may have been negligence.

5.) Consult with a legal professional: Consider consulting with a lawyer who specialises in professional negligence claims. They can assess your situation, advise you on your rights, and help you determine the best course of action.

6.) File a Complaint: Depending on the profession, you may have the option to file a complaint with a regulatory body or professional association.

7.) Consider alternative dispute resolution: Explore alternative dispute resolution methods such as mediation or arbitration to resolve the issue outside of court.

8.) Keep Records: Keep through records of all communications and documents related to the suspected negligence. These can be crucial evidence if you decide to pursue legal action.

At Hanne & Co, we are here to speak with you if you have suffered a loss resulting from the negligence of a professional, or if you are a professional defending a claim made against you. We know how to assess the merits of a potential claim, apply the facts to the relevant legal principles and run claims in accordance with the Pre-Action Protocol for Professional Negligence.

We are frequently able to initially commence work on a fixed-fee basis and advise early as to prospects, so that the correct approach to the professional negligence dispute can be taken before court action emerges on the horizon.

Get in touch with us today to by calling us on +44 (0) 207 228 0017 or via the form below.