Professional Negligence vs. Ordinary Negligence
Professional negligence is the failure of a professional to take proper care when working with a client. Basically, clients expect professionals to know how to keep them from physical, financial, and emotional harm – at least in terms of their working relationship. If the professional falls short, they may be accused of breaching their duty of care.
In a lot of ways, professional negligence and ordinary negligence are similar. Both describe instances where individuals fail to take reasonable care in a situation. It's the situation, however, that determines which term is appropriate.
Tomayto, Tomahto: It’s All Negligence, Right?
Negligence is based on the rule that everyone must take reasonable measures to avoid hurting others. This is called a "duty of care." You're usually obligated to avoid foreseeable injuries, even in cases where you have no direct relationship with the other person.
But that doesn't mean you can put all negligent acts into one basket. In fact, the law breaks negligence down into different kinds. For this article, we're just going to look at two:
- Professional negligence: If you are a professional or you market yourself as an individual with a specialized skillset, your clients are entitled to a standard of care. In other words, your clients expect you to help them, not hurt them. If you breach those expectations, that's professional negligence. The breach could be an injury your work caused, but it could also be a clerical oversight. Say you're an accountant preparing a client's tax forms. You make an error, which triggers an audit from the IRS. The client sues your business over the mistake because they should be able to reasonably expect a professional accountant to check their work.
- Ordinary negligence: Basically, ordinary negligence means that a person should take reasonable measures to avoid causing harm or injury to others. Unlike professional negligence, this type of negligence applies to the public at large. For example, say you back your car out of the driveway, but you don’t check your rearview mirror first. A stranger is walking their dog when your car's tire clips the canine's paw. Fido is fine, but the owner sues you because you should have taken care to check your surroundings before reversing.
In both situations, you have a responsibility to act reasonably for the circumstances. However, your duty of care may weigh a little heavier in your professional life. That's partly because the relationship with your client usually makes your duty clear in court. You're the person with the specialized knowledge, so the client should be able to expect a professional level of service from you.
But the other concern is your reputation. People hire you based on their belief that you can get the job done. A professional negligence lawsuit can damage your good name and your business. It's smart to avoid them.
So what can you do to ensure you take "reasonable measures" to avoid causing others harm? For that answer, we'll look at a few common ways to test your duty of care.
How to Avoid a Professional Negligence Lawsuit
The first step to avoiding accusations of professional negligence is to learn how the courts evaluate it. This information can help you make decisions that better protect your business.
States use different tests for evaluating the duty of care. Generally speaking, there are two types:
- Foreseeability tests. These tests determine whether you could have predicted your client's damages. Let's use the example of an accountant again, but this time instead of triggering an audit, you blow off a deadline. As a CPA, you probably should have foreseen that the IRS would fine your client.
- Multi-factor tests. These tests use several factors to determine whether or not someone breached their duty of care. Depending on the state, the court might consider…
- How much damage you did.
- Whether you could have done something else.
- How much would it have cost to do something else.
- Whether it would have been safe to do something else.
The most common deciding factors in professional negligence cases are foresight, breach of duty, and a direct link between a person's actions and the damage suffered by another person.
As a small-business owner, you can protect yourself by:
- Keeping the professional liability tests in mind when you work with clients.
- Providing quality work that meets the standards of your profession.
- Staying current on developments in your field so you don't fall behind on acceptable industry practices.
- Knowing your state's duty of care laws and preparing for possible negative outcomes.
Why You May Still Need Professional Negligence Insurance
Delivering high quality products and services protects not only yourself, but also your customers. However, even the most cautious professional can be sued over negligence. That's why many still carry a professional negligence insurance policy like Professional Liability Insurance. The coverage offers an extra layer of protection when other precautions fail.
For more details, read "Professional Liablity Insurance Defined: Who Needs It and How It Protects Small Businesses."