Legal Question in Medical Malpractice in Oregon

Definition of malpractice

I am a reference librarian looking for the legal defintion of malpractice. My patron says there are 3 or 4 criteria which must be met - something involving "wilful negligence" for one, and "community standards" for another. I have searched law sites and law dictionaries and our state statutes and cannot find any mention of this. If you could at least point me in the right direction, I'll be glad to keep searching!


Asked on 1/16/98, 11:31 pm

2 Answers from Attorneys

Benjamin Glass Law Offices Benjamin W. Glass & Associates

definition of malpractice

"malpractice" is not really a legal term at all. The term commonly used is "negligence" and negligence can apply whenever anyone's careless ness causes injury. YOu can be negligent by running a red light. When a professional such as a doctoris careless, it generally takes expert testimony to prove what proper care required. Thus, casesdealing with professions can be called "professional negligence" cases. These have been termedmalpractice cases. Really, though, if you run a red light and hurt someone you have committed"driving malpractice." In terms of a definition, what we generally say is that the "standard of care was violated" The standardof care is what a reasonably prudent (lawyer, doctor, accountant, etc) would have done under the same orsimilar circumstances. IN some states the "similar circumstances" means what someone else in the local community or state would havedone but in most enlightened jurisdictions, that standard ismeasured against other board certified professionals in the field.

One thing is clear, the conduct does not have to be willful, and , in fact, most malpractice is not willful, but simply careless

There is a lot more information about this available at my website.

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Answered on 1/23/98, 6:04 pm
Richard Sly Richard Sly Attorney-at-law

definition malpractice

"Professional malpractice can be defined as legal responsibility for damages due to an act or omission by a person held out as possessing special skills when the act or omission did not meet the standard of care of the average, reasonably prudent practioner of the profession. The distinguishing characteristic of claim of professional malpractice is the need to educate the factfinder on the proper standard of care by which to measure the conduct of the professional. Professional negligence, or malpractice, is the failure to meet that standard. Getchell v. Mansfield, 260 Or 174, 489 P2d 953(1971)."

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Answered on 1/23/98, 8:16 pm


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