SMALL CLAIMS COURT: PROFESSIONAL MALPRACTICE
Professional malpractice refers to negligence or misconduct by professional persons, such as lawyers, doctors, dentists, accountants, financial advisors, investment companies, insurance agents and other professionals. Professional malpractice is an area of legal practice that deals with an individual professional’s or a business’ wrongdoing that causes injury or damage. The failure to meet standard of conduct or a standard of care that is recognized by a profession reaches the level of malpractice when a client or patient is injured or damaged because of that wrongdoing.
Examples of professional malpractice are breach of duty, mismanagement, omissions, errors, misconduct, misrepresentation, fraud, careless delivery of services and performance of technical or medical procedures. Professional malpractice is an act or continuing conduct of a professional which does not meet the standard of professional competence and results in provable damages to their client.
Legal malpractice: Legal malpractice is the term for misconduct, negligence, breach of fiduciary duty, or breach of contract by a lawyer or paralegal that causes damage or harm to their client. A lawyer or paralegal has the duty, in all dealings and relations with a client, to act with honesty, good faith, fairness, integrity, and fidelity. A lawyer or paralegal must possess the legal skill and knowledge that is ordinarily possessed by members of the profession. Legal malpractice occurs when a lawyer or paralegal acts in their own interest instead of interests of their clients. A common basis for a legal malpractice claim arises where a lawyer or paralegal misses a deadline for a filing of a paper with the court and this error is related to the loss of the client’s cause of action
Medical malpractice is professional negligence by act or omission by a health care provider (doctors, nurses, caregivers, dentists and other health related professionals) in which care provided deviates from accepted standards of practice in the medical community and causes injury to the patient, with most cases involving medical error. Medical professionals may obtain professional liability insurances to offset the risk and costs of lawsuits based on medical malpractice.
Situations for Filing a Claim for Professional Malpractice in Small Claims Court
Sometimes a professional causes damage or harm by being ignorant, careless, negligent, or untruthful. We feel like a professional has done something wrong to us or our family but think that it is no use to complain against the powerful professional. But in fact, those professionals are responsible for their wrongdoings. They may be required to account for their actions or failure to act to governmental, professional or licensing organizations responsible for enforcing required standards. If you believe that professional wrongdoing was the cause of the damage or harm you have suffered there might be a case to be compensated for your losses. This may include payment for pain and suffering, economic losses including past and future income, medical expenses, and more.
A claim for professional malpractice basically asserts that the professional involved failed to act like other professionals would have acted in the same of similar circumstances. It is not just medical professionals who are liable for malpractice. There are many other professionals that rely on a high amount of education and finesse which can also be the source of malpractice. For example, accountants must uphold strict standards of monitoring your finances. If accountants fail to follow the accounting principles, this can reflect badly on your account when it is audited. This can result in legal damages if they do not correctly keep your records, or it can result in actual financial losses and damages. One more example: architects and engineers take people’s lives in their hands when they are building and making plans. If an architect does not correctly the weights of the materials or the angles at which they should place the supporting beams, the structure can collapse and injure those in and around it.
A professional is liable for fraud (except when the client caused the professional to commit fraud) and is generally liable for any damages resulting to the client by their negligence. Moreover, a professional is responsible for the doings of their associates, assistants, and partners and may be liable for their doings if they result in losses to the client.
Negligent errors are most commonly associated with professional malpractice. An error or omission may be through negligence, ignorance (when the professional should have known), or intentional wrongdoing. This category is based on the premise that a professional has committed an error that would have been avoided by a competent professional who exercises a reasonable standard of care.
Professionals, who give improper advice, improperly prepare documents, or fail to file documents on time, may be charged with professional malpractice.
Many professional malpractice claims are filed because of negligence in the professional relationship. The improper and unprofessional handling of the professional-client relationship leads to negligence claims that are not based on the actual services provided.
Another area of professional malpractice involves fee disputes. When a professional sues their client for professional’s fees, many clients assert professional malpractice as a defence.
Professional malpractice claims in Small Claims Court require involving experts from appropriate industry to thoroughly examine details, to find out if any professional standards were broken and to provide the strongest possible representation in Small Claims Court case. In order to prove professional malpractice there may be testimony of an expert as to the acceptable standard of care applied to the specific act or conduct which is claimed to be malpractice and testimony of the expert that the professional did not meet that standard. The defendant then can produce their own expert to counter that testimony.
Professional Malpractice Proceedings in Small Claims Court
You might want to file a claim for Professional Malpractice matters in small claims court if the damages you will request are not more than $25,000. The number of steps in a Small Claims Court proceedings varies from case to case.
Time Limits: There may be a time limit on how long you can wait before making a claim in Small Claims Court, which is set out in the Limitations Act. Under the law, the time you have to sue may run out. The deadlines vary depending on the circumstances of the case, and the type of case or claim. Check the time limits for your type of case. If you aren’t sure about whether you are still in time to make a claim, talk to CP Paralegal Services.
The following steps will have to be taken for your Professional Malpractice case in Small Claims Court:
- Completing the Plaintiff’s Claim form: you will be required to write in the plaintiff’s claim form a short, clear summary of the events that took place and the reasons you think you are entitled to judgment against the defendant.
- Deciding which Small Claims Court office to go to
- Preparing all documents and evidences that can support your case
- Filing the claim
- Paying Small Claims Court fees
- Serving the Plaintiff’s Claim after you have filed the claim with the court: you must prove that the defendant was properly served with the claim. You do this by filing an Affidavit of Service form.
If you have filed a claim and the defendant has not filed a Defence within 20 days, you can ask the court clerk to note the defendant in default. You do this by filing a Request to Clerk form. When a defendant has been noted in default you can ask the court to order them to pay money to you. This can be done by:
- Asking the court clerk to sign default judgment for a specified sum of money for that you must fill out and file a Default Judgment form; or
- Asking a judge to order default judgment. To do this, you file a Notice of Motion and Supporting Affidavit form. Explain the facts supporting your motion.
If it is a defended small court procedure, both parties should go for a settlement conference – a meeting with the parties and a judge to try to find an answer to the case that all parties can agree to. It must be held no later than 90 days after the first Defence is filed. There is a special rule for claims that are less than $2,500. The parties can agree to have a judge decide the case at the settlement conference. To agree to this, the parties must fill out a Consent form. The judge would decide the case at the settlement conference only if the parties could not reach a settlement. If the judge decides the case at the settlement conference, the case ends and there is no trial. At the trial each party tells their side of the story and the judge makes a decision.
What You Need to Consider BEFORE making Professional Malpractice claim in Small Claims Court:
- Ask yourself if a lawsuit that you are going to start will be worth it.
- You will need the correct legal name of the person or business and a current residential or business address.
- Information you need to have to support your Small Claims Court case: You will have to prove your case. Consider what witnesses and/or documents you have to support you: any written evidence, documents, photographs and other that you intend to use to support your claim must be attached to the Plaintiff’s Claim form.
- Time you have to spend: Can you take days off at work to file your claim, deliver documents, and attend in court for a trial? Are you willing to spend hours and hours for: 1) researching all guides on filing your claim; 2) researching all applicable Small Claims Court procedures and steps; 3) visiting Law Help Ontario at Small Claims Court – Pro Bono Law Ontario Duty Counsel are free lawyers that offer limited services to the public at the Toronto Small Claims Court; or 4) reading legislation on-line, for example the Limitations Act?
- Consider other options to resolve the issue: To keep your costs low, you might want to try to reach an agreement out of court. This is called settlement. You may consider mediation, which is a less formal method of resolving a dispute through a neutral third party. Mediation can be less time-consuming, more flexible, and less expensive than proceeding in court. It can also help you find your own solution to the dispute and preserve your relationship with the person/business. CP Paralegal Services is always ready to provide you with mediation services.
- Consider having help from CP Paralegal Services: keep in mind, court staff cannot provide you with legal advice or help you to complete all necessary forms. Do not relay on information from relatives and friends, unless they are lawyers or paralegals.
How CP Paralegal Services Can Help You with Professional Malpractice Case in Small Claims Court
The list of reasons to make a claim for Professional Malpractice in Small Claims Court can be endless. Although, you do not need a lawyer or paralegal when you go to Small Claims Court, to have a knowledgeable and experienced party to defend your case is a good idea. Remember, CP Paralegal Services is always ready to help you with your Professional Malpractice matter. We think that the information above that we have gathered especially for you, has assured you that dealing with Small Claims Court claim is complicated and often is overwhelming even for professionals.
There are 5 reasons why you may consider asking CP Paralegal Services for assistance:
- At CP Paralegal Services, we have experience and knowledge; we know how to deal with your Professional Malpractice case in Small Claims Court.
- If you hire CP Paralegal Services to represent you in Small Claims Court for your Professional Malpractice case, we’ll go to the court office as many times as it necessary, we’ll come to the trial instead of you, and you will not be involved in a stressful process.
- You will not have to ask for a day off at work for filing and serving documents or attend the trial.
- CP Paralegal Services will develop the best possible strategy of your defence.
- We make sure that all evidences are well-organized for your Professional Malpractice case and all time limits are considered.
Do not make a mistake! Save your time, money and nerves!
Let CP Paralegal Services do their job while you are doing yours!
Do not forget that the other party is able to respond to your claim and may give evidence that will affect the judge’s view of your Professional Malpractice case. The particular details and proceedings for a Professional Malpractice are very technical, tricky and complicated and, more likely, you will need professional assistance.