This paper was originally written as an assignment for the Human Rights Law Clinic in 2005, when I was still a student.
1. Negligence by a professional.
What is Negligence?
Negligence is the legal term used to describe a situation where someone acts carelessly, or fails to act at all, resulting in injury or loss to another person.
Depending on their relationship, people have a legal duty of care to others to act in a certain way or to not act carelessly.
In society people are taught to be careful, and to behave appropriately and responsibly under the law. It is expected that people will use the skills and abilities in a manner that a reasonable person in their particular situation would use. Duty of care is breached when a person’s actions do not include the meeting of reasonable expectations.
It must also be determined whether the action was forseeable. In other words, would a reasonable person in similar circumstances be able to foresee the injury or action? If the answer is yes, then there was a breach of duty of care.
The standard of care differs according to the relationship of the parties involved. For example, someone with the duty of care for a child, such as a school-teacher, has a higher standard of care than an individual tutoring another adult.
Who is a professional?
Professionals are generally persons whose work is highly skilled and specialized. They are usually expected to be committed to provide a high standard of service, and often enjoy a high status in the community. Practitioners usually belong to a professional association, which regulates admission and seeks to uphold the standards of the profession. Examples of professionals include architects, doctors, dentists, engineers, lawyer, and accountants.
The standard of care of a professional.
Professionals are expected to exercise a standard of care which is ordinarily exercised by reasonably competent members of their profession, who have the same rank and possess the same specialization[1].
When is a professional negligent?
Once it is established that a breach of the duty of care has occurred, a direct link needs to be established between the professional’s actions and damage that occurred. That is, did the negligent behaviour cause the injury, or was the injury a result of other factors? If the professional’s negligence caused the damage, then a case may be made for professional negligence.
2. Types of professional negligence.
Clinical / Medical Negligence
Clinical negligence applies to health care providers such as medical doctors, psychologists, dentists, and nurses. It occurs where a patient has been harmed, not because of an unavoidable complication, but because the healthcare professional has not given the proper standard of care.
Clinical negligence includes making a mistake during surgery, giving the wrong drug, making the wrong diagnosis or delaying a diagnosis unnecessarily. It may also include a failure to act, such as not giving the treatment that one needed, not getting one’s consent to treatment or not warning about the risks of a particular type of treatment.
A person who is the victim of clinical negligence may be entitled to bring an action for the injuries and all direct consequences of those injuries. “Direct consequences” include any mental or physical pain and suffering caused by the careless practitioner, and any lost wages resulting from the injury.
Legal Negligence
An attorney commits legal negligence when he or she fails to provide quality legal services to a client. For example, a lawyer who misses deadlines, inadequately prepares for a trial, misses numerous court dates, hearings, or appointments with the client, or represents both sides in a dispute without informing both parties, commits legal negligence.
It should be noted that bad conduct that is not unique to lawyers may lead to a lawsuit, but may not constitute legal negligence. Thus, a lawyer who steals funds from a client, or assaults a client, has committed a crime but probably has not committed legal negligence.
There is an important distinction between consulting an attorney about a legal matter and retaining that attorney to handle the matter. Generally speaking, only retaining an attorney obligates him or her to act on behalf of a client.
Engineer and Architect Negligence
Engineers and architects can be liable for the actual construction and design of a building if the structure proves unsafe or unsound, or they can be liable for negligent review of a building under construction or remodelling.
If an engineer or architect reviews a structure and declares it sound to a perspective buyer, and it is discovered later that the building needed structural repairs, the buyer may have grounds for a professional negligence claim against the engineer or architect.
Claims that allege that an architect or engineer committed professional negligence differ substantially from medical or legal negligence lawsuits, in that virtually all agreements between an architect or engineer and an owner are in standardized written contracts. These lawsuits hinge more on interpretation of contract than on the application of common law principles.
Accountant Negligence
Financial services professionals such as accountants, auditors and actuaries are also subject to a very high standard of care. Where a professional claims to be a specialist in a particular type of tax, for example, and charges more for such extra expertise, his duty of care will be measured against a reasonable specialist accountant in this area of tax rather than a standard accountant.
3. The law and professional negligence.
The laws of Trinidad and Tobago contain provisions to regulate the services of certain professionals.
The Medical Board Act Chap. 29:50, for example imposes harsh penalties on practitioners who are guilty of disgraceful conduct.
Disgraceful conduct includes:
- Wilfully betraying doctor/patient confidentiality.
- Abandoning a patient in danger without sufficient cause, and without giving him an opportunity to retain the services of another medical practitioner.
- Employing as an assistant any person who is not properly licensed or registered to treat patients in respect of matters requiring professional discretion or skill.
- Claiming to be a specialist, or specially qualified in a particular branch of medicine, for which he/she has not taken a special course or received a certificate.
- Doing of failing to do any act or thing which the Council of the Medical Board of Trinidad and Tobago considers to be unprofessional or disgraceful.
Meanwhile, legislation such as the Nurses and Midwives Registration Act Chap. 29:53 also places professional liability on other medical support staff.
A person is entitled to claim for clinical negligence against any healthcare professional in this regard. This includes nurses, midwives, physiotherapists, osteopaths, private practitioners, mental health care teams, laboratory services, dentists, medical or dental technicians, opticians and the ambulance service.
The Legal Profession Act No. 21 of 1986 also sets out guidelines to practitioners with regards to their relations with clients. This code of conduct includes:
- A duty to act in the best interest of the client, to represent him (the client) honestly, competently and zealously and endeavour by all fair and honourable means to obtain for him the benefit of any and every remedy and defence which is authorized by law.
- A duty to obtain full knowledge of client’s cause, and to give a candid opinion of the merits and demerits and probable results of pending or completed litigation.
- An obligation to maintain a confidential relationship with clients.
- A duty to deal with a client’s business with all due expedition and to accept a case only if it can be handled without undue delay.
- An obligation to resolve any situations where there is a conflict of interest by leaning against multiple representation, and making full disclosure of the possible effects of multiple representation.
These provisions are designed to protect clients from potentially negligent situations. Practitioners who breach these regulations may be brought before a disciplinary committee of the Law Association of Trinidad and Tobago.
4. Victims of professional negligence.
Persons who suffer injury as a result of professional negligence may feel distressed and confused by what has happened, and may require advice and support. This could be from friends, family or specialist support groups.
What action should be taken?
The first step is to identify what type of action the victim expects from the negligent professional. This may include:
- an apology or explanation.
- an assurance that the same mistake would not be made again, for example a change in procedures, disciplinary action, or retraining.
- compensation.
It is important to understand that taking legal action is only concerned with getting compensation. Other remedies, such as an apology or the safety of other persons, may be more important to the victim, however, once a legal claim is started, these other courses of action may not be available.
A victim should therefore decide carefully what action he/she wants to pursue.
Taking legal action
A decision over whether or not a case should be taken forward is a question of balancing the financial and other risks involved against the benefits. Litigation can be unpredictable both as to outcome and costs. Some of the factors that should be taken into consideration are:
- Might the dispute be settled early?
- Will the other side fight all the way, or is it likely that a settlement can be reached?
- If the claim succeeds will the other side be able to pay the compensation?
- Will expensive expert evidence be needed?
The action should only be continued if there is a likely benefit in so doing to the victim.
Victims should consult an attorney-at-law as soon as possible for guidance with regards to the strengths and weaknesses of the claim.
The Civil Procedure Rules
There are new court rules to enable cases to be resolved quickly or be speedier in court[2].
The issue of court proceedings is often seen as a last resort. Victims cannot engage in deliberate delaying tactics or attitudes. The court will be taking an early view of the strength of the case and the proportionality of legal costs incurred compared to the benefit of the potential outcome.
Pre-action protocols require a “cards on the table approach”. Information and evidence must be exchanged early. One is therefore expected to explore every avenue to resolve the case. This includes mediation and negotiation. Failure to do this may result in heavy penalties being imposed by the court.
This therefore requires early investigation of the facts, analysis of the law, work on documents and instructions of experts. Victims are responsible for the legal charges for this early work and these costs may be irrecoverable.
Limitation Periods
One usually has four years in which to bring a claim against a professional. Once this time has elapsed, becomes barred forever by statute. to bring a claim against that professional before your claim This is usually referred to as the “limitation period”. The date that the time begins to run is established by taking the date of the original negligent act or omission by the professional.
While there may be circumstances in which this imitation period may be extended, for example, where there are outstanding matters between the victim and the professional, it is important that these circumstances be discussed with an attorney-at-law, in order to determine whether the period may be extended.
Persons intending to bring a claim against a professional therefore, ought to issue the claim at court within this four-year period.
Evidence, records and documents
In professional negligence claims, expert evidence is often crucial. The experts will base their opinion on:
- The documents, correspondence and records relating to all dealings between the professional and the victim.
- The victim’s statement about what has happened.
- Any other documents supporting the victim’s case.
Meanwhile, court rules on disclosure of documents are strict and must be complied with. All paperwork, records and notes no matter whether they may be damaging to the victim’s own case or even if they are commercially sensitive, must be available.
Additionally, the victim must satisfy the court that he or she has conducted a reasonable and proportionate search to locate all documents that could be relevant. There are penalties and sanctions for a failure to do so.
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