Professional Malpractice
Most negligence holds people to the reasonably prudent person standard, and custom is only relevant evidence, never the last word.
5. Negligence: Duty of Care – Professional Malpractice
Professional malpractice is the failure to exercise the care, skill, and knowledge normally possessed by members of that profession in good standing in similar communities. RESTATEMENT (SECOND) OF TORTS § 299A (1965); NRS 41A.015 (medical); Charleston v. Hardesty, 108 Nev. 878, 883-84 (1992) (attorneys).
- Professionals are held to the standard of what is customary for their profession, although what is customary is typically not conclusive evidence of the standard of care outside of professional malpractice.
- I.e., a professional must exercise the care, skill, and knowledge normally possessed by members of that profession in good standing.
- A professional’s duty of care may be lowered or heightened based on representations to the public or patient/client about the level of care, skill, knowledge, experience, or scope of practice of the professional.
- A doctor's duty of care includes informing the patient of known risks, benefits, and alternatives to any course of action prior to obtaining the patient's consent to proceed.
- The standard elements of actual cause, proximate cause, and damages also apply to professional malpractice.
- The Nevada FLE does not test additional specifics about informed consent, such as specialized causation approaches or other rule variations.
In malpractice, the standard of care is what is customary for the profession, the care, skill, and knowledge normally possessed by members in good standing, proved by expert testimony. Custom essentially is the standard here, unlike ordinary negligence.
Most negligence holds people to the reasonably prudent person standard, and custom is only relevant evidence, never the last word. Professional malpractice flips that. When a professional is sued for malpractice, the standard of care is what is customary for that profession. The professional must exercise the care, skill, and knowledge normally possessed by members of the profession in good standing in similar communities. So custom does not just inform the standard here; it essentially is the standard, which is why malpractice almost always requires expert testimony about what competent members of the profession actually do. A lay jury does not get to decide for itself what reasonable surgery, accounting, or lawyering looks like.
Two refinements matter. First, the floor or ceiling can move: a professional who advertises or represents a particular level of skill, experience, or scope of practice can be held to that represented level, so representations can heighten the duty or, less commonly, lower it. Second, malpractice is still a negligence claim, so the ordinary elements of actual cause, proximate cause, and damages all still have to be proved. Beating the standard-of-care fight does not win the case by itself.
The doctor's duty also includes informing the patient of known risks, benefits, and alternatives before getting consent, but the FLE tests that only at the general level.
Proving a departure from professional custom establishes breach only. Malpractice is still a negligence claim, so actual cause, proximate cause, and damages must all be proved; breach alone is not liability.
The FLE does not test specialized causation approaches or other informed-consent rule variations. Know the doctor's consent duty only at the general level.
"Custom is the standard"
for malpractice.
Everywhere else in negligence custom is just evidence; in malpractice the profession's own customary practice sets the bar, proved by experts, not by a lay jury's gut.
Memory line: same profession, good standing, similar community.
And remember the dial and the leftovers: a professional's representations can turn the dial up or down, and the leftover elements (actual cause, proximate cause, damages) still have to be proved.
A small business hires an accountant to prepare its tax filings. The accountant skips a verification step that every competent accountant in good standing routinely performs, and that error causes the business a large, avoidable penalty. The business sues for malpractice, and the accountant argues the jury should decide for itself what a careful person would have done.
If the accountant had followed customary professional practice, there would be no breach even if, with hindsight, a different choice looks better.
An option imports the ordinary-negligence rule that custom is only relevant and not determinative, or measures the professional against a lay reasonableness standard.
Malpractice is the exception: the profession's custom essentially is the standard of care, proved by experts, not by a lay sense of reasonableness.An option swaps the profession-wide custom for the defendant's own personal practice, the defendant's sincere belief, or the client's subjective expectations.
The benchmark is the care customary among members of the profession in good standing, not the individual actor's habits or the client's hopes.A correct yes/no answer is paired with a rationale that treats a departure from professional custom as automatic liability and skips causation and damages.
Malpractice is still negligence, so actual cause, proximate cause, and damages must all be proved; breach alone is not enough.An absolute option says only the defendant professional may define the proper technique, or that custom can never set the standard.
The standard is the profession's custom shown by expert proof, with no single-actor veto and no never-rule.The stem hands you a licensed professional (doctor, lawyer, accountant, engineer, architect) sued by a client or patient over how a professional task was performed, and someone in the fact pattern wants the standard decided by ordinary reasonableness, by the defendant's own say-so, or by the client's expectations.
That is the malpractice cue: ask whether the conduct departed from the care, skill, and knowledge customary for that profession in good standing.
Watch for an advertised or represented skill level, which can raise the bar, and confirm the leftover elements (cause and damages) are still proved before keying liability.
A small company hired an accountant to prepare its tax returns. The accountant failed to perform a verification step that accountants in good standing routinely perform, and that omission caused the company a large tax penalty it otherwise would have avoided. The company sued the accountant for malpractice. The accountant asked the court to let the jury decide for itself, without expert testimony, what a careful person would have done.
By what standard is the accountant's conduct measured?
An engineer designed a retaining wall using the method customarily used by engineers in good standing for that soil and site. The wall later failed during an unusually severe storm, and the property owner sued for malpractice. The owner offered expert testimony that the customary method, though universally followed by competent engineers, was in the expert's personal opinion not the safest possible choice.
How does the engineer's compliance with the profession's customary method affect the malpractice claim?
A lawyer advertised herself to the public as a specialist with advanced expertise in a complex area of tax law and accepted a client on that basis. In handling the matter she exercised the care an ordinary general practitioner would have used, but fell short of the care expected of the specialists she had held herself out to be. The client was harmed and sued for malpractice.
To what standard of care is the lawyer most likely held?
A patient sued a physician for malpractice and proved that the physician departed from the care customarily exercised by physicians in good standing. The evidence also showed, however, that the patient's underlying condition would have produced the very same outcome even if the physician had treated her in full accordance with the professional standard. The patient suffered no separate harm from the physician's departure.
Is the patient likely to prevail on her malpractice claim?
An architect was sued for malpractice after a building feature he designed failed. The architect testified that he had personally designed that feature the same way on many past projects and considered it sound. The plaintiff's expert testified that architects in good standing do not design the feature that way and that the architect's approach fell below the accepted practice of the profession.
Which consideration determines whether the architect met the standard of care?