Professional Liability

Professional Liability Attorney in Phoenix, Arizona

Professional liability controversies are simply described as disputes between professionals and their clients. Professional liability litigation often hinges upon complex expert opinions and can be quite taxing on litigants where the nature of the relationship included a component of trust or collaboration. Cases involving physicians (medical malpractice), lawyers (legal malpractice), accountants, engineers, insurance producers, or real estate agents or brokers, all tend to fall under the category of professional liability. This is especially true where there is an allegation of failure to exercise reasonable care consistent with the care and skill of a reasonable, prudent person engaged in their particular licensed profession. Additionally, a breach of contract allegation regarding services rendered generally falls under the category of professional liability negligence. The following is an overview of some tort principles that may apply to professional liability claims.

Standard of Care: Professionals who engage in activity requiring special care are required to exercise reasonable care consistent with the care and skill of a reasonable, prudent person engaged in the particular profession or occupation.  A typical custom or practice is relevant in determining the pertinent standard of care and if there was a breach thereof.  To prevail on a professional negligence claim, a plaintiff must prove: (1) the existence of a duty; (2) a breach of the duty owed; (3) actual and proximate causation; and (4) injury or damages.

Certification: Pursuant to A.R.S. § 12-2602, any claim against a licensed professional in a civil action must be accompanied by a certified written statement that is filed and served with the claim regarding whether or not expert opinion testimony is necessary to prove the licensed professional’s standard of care of care or liability for the claim. 

Medical Malpractice: Medical malpractice occurs when treatment falls below the standard of care generally accepted and established by the appropriate medical community. Claims against specialists must be supported by the expert opinion of a specialist who is board certified in the relevant specialty.

Legal Malpractice: The standard of care requires an attorney to “act for his client in a reasonably careful manner in light of his special professional knowledge.  An attorney is not liable for negligence regarding unsettled issues of law on which reasonable attorneys may differ. While it may be evidence of a breach of the standard of care, the law does not recognize a separate cause of action for breach of an ethical duty because the Rules of Professional Conduct do not establish legal duties.  In a legal malpractice claim, a plaintiff must prove that actual causation exists, or that but for the attorney’s negligence, plaintiff would have succeeded in the original suit.  The case-within-a-case methodology requires the appropriate arbiter to determine what the result “should have been,” not what it “could have been.”

Directors and Officers: A board member’s obligation to the corporation and its shareholders involves a duty of care and a duty of loyalty. The duty of care refers to the responsibility to exercise the care that a reasonably prudent person in a similar position would exercise under similar circumstances. The duty of care is evaluated according to the “business judgment rule,” which precludes judicial inquiry into actions taken by a director in good faith and in the exercise of honest judgment in the legitimate and lawful furtherance of a corporate purpose.  The director’s second duty, that of loyalty, springs from the prohibition against self-dealing that is inherent in a director’s fiduciary relationship with the corporation and its shareholders. Once there is a prima facie showing that a director is personally interested  in a corporate transaction, the business judgment rule does not apply, and the burden shifts to the director to show that the decision with respect to a particular transaction is fair and serves the best interests of the corporation and the shareholders. 

Homeowners Associations: Homeowners association (“HOA”) board members owe a duty to treat members fairly and act reasonably in the exercise of its discretionary powers including rulemaking, enforcement, and design-control powers[.]” Id. at § 6.13(1)(b), (c). CC&Rs constitute a contract between the subdivision’s property owners and the individual lot owners setting forth restrictions to enhance and protect the value and desirability of property. A HOA’s CC&Rs should be interpreted to give effect to the intention of the parties as determined from the language of the document in its entirety and the purpose for which the covenants were created.

Negligent Misrepresentation: To prevail on a claim for negligent misrepresentation, a plaintiff must prove (1) the provision of false information intended for the guidance of others; (2) justifiable reliance upon the false information; (3) that reliance upon the false information caused damage; and (4) failure to exercise reasonable care or competence in obtaining or communicating the information.

The content of this website does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Laws are always subject to change through the passage of new legislation, rulings in the higher courts, and other means. Please consult an attorney or conduct your own legal research to verify the state of the law and evaluate potential application to the facts of your matter.

Dunne Law PLLC is located in the Esplanade at E. Camelback Rd. and N. 24th St. in the Biltmore area of Phoenix, Arizona.