An increasing number of small claims cases are being filed against doctors, lawyers, accountants, and other professionals. The main reason is that it can be difficult or impossible to get lawyers to represent you in a formal court action. (Lawyers accept only one in 20 medical malpractice cases, according to one study.) As a result, the injured person must decide to either file without a lawyer in formal court or scale down the dollar amount of the claim to fit into small claims court.
To succeed with a malpractice claim, you must establish all of the following facts:
- Duty. The lawyer, doctor, dentist, or other professional owed you a duty of care. This is automatic as long as you were a patient or a client.
- Carelessness. The professional failed to use at least ordinary professional skills in carrying out the task (unless the person claimed to be a specialist, in which case the standard is higher). This one can be tougher to prove, because unless the mistake is breathtakingly obvious, you'll normally need to get the opinion of one or more other professionals (experts) that your professional screwed up. In theory, you can do this via a letter, but since the professional you are suing will almost surely be in court denying all wrongdoing, it is far better to have your expert witness testify in person.
- Causation. The professional's carelessness directly caused the harm or injury you suffered. For most types of malpractice, showing that the professional caused your injury isn't a problem (if a dentist stuck a drill through your cheek, for example). But in the legal field, the causation issue can be tricky. That's because you typically will need to show not only that the professional's mistake caused you to lose but also that you would have won if no mistake had been made. In other words, you need to convince the judge your underlying lawsuit was a winner.
- Damages. The harm you suffered at the hands of the professional resulted in actual economic loss to you.
EXAMPLE: You consult a lawyer about an injury you suffered when you tripped and fell at a store. The lawyer agrees to file a lawsuit on your behalf but forgets to do so before the two-year statute of limitations runs out. Several malpractice lawyers you consult won't represent you in suing the incompetent lawyer because your injuries were fairly minor and they aren't sure that even if malpractice is established, you will be able to prove that you would have won your case against the store. (In other words, they believe you may not have been harmed by your lawyer's mistake in failing to file your case on time because your case wasn't so hot in the first place.) You sue your lawyer in small claims court. His failure to file your case on time is clearly an act of carelessness (a lawyer using ordinary legal skills would have filed on time), but to win you'll also have to show that your lawyer's careless act resulted in monetary harm to you. This means convincing the judge that, in fact, your case against the store was a winner and that your injuries were serious enough to qualify for at least the amount of money you are requesting.
Further reading on malpractice cases. Represent Yourself in Court: How to Prepare & Try a Winning Case, by Paul Bergman and Sara Berman-Barrett (Nolo), explains how to bring a malpractice case in formal court.