Negligence - Professional people

Learning Outcomes

This article explains negligence by professional people on the MBE, including:

• Identifying the legal standard of care applicable to professional defendants.
• Identifying which actors qualify as professionals or specialists and when the heightened professional standard of care applies.
• Distinguishing the professional standard from the ordinary reasonable person standard and recognizing exam fact patterns that test that distinction.
• Describing how custom, locality rules, and specialization shape the applicable standard of care in malpractice questions.
• Explaining when expert testimony is required, when it may be dispensed with, and how it proves both standard and breach.
• Applying negligence principles to medical, legal, accounting, and design malpractice scenarios, with attention to common multiple‑choice distractors.
• Analyzing informed consent, including competing disclosure standards, key exceptions, and how examiners separate consent issues from treatment negligence.
• Evaluating whether a professional’s “error of judgment” falls within an acceptable range of professional choices or constitutes actionable negligence.
• Assessing professional liability for negligent misrepresentation, focusing on who is owed a duty and what losses are recoverable.
• Integrating duty, breach, causation, and damages to determine overall liability in complex professional negligence fact patterns.

MBE Syllabus

For the MBE, you are required to understand how negligence applies to professional people, with a focus on the following syllabus points:

• The professional standard of care and how it differs from the ordinary reasonable person standard.
• How industry custom helps define the standard of care in professional negligence.
• The role and necessity of expert testimony in establishing both the standard and breach.
• Circumstances under which professionals are liable for negligence, including malpractice and negligent misrepresentation.
• Special doctrines for medical malpractice (including informed consent), legal malpractice, and liability of accountants, architects, and similar professionals.
• Causation and damages issues peculiar to professional negligence (e.g., “case within a case” in legal malpractice).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following best states the standard of care for a professional person in a negligence action?
   1. The care of an average person in the community.
   2. The care of a reasonable person with the same training and skill as the defendant.
   3. The care of a reasonable person under the circumstances.
   4. The care of a person with superior knowledge, regardless of profession.
2. In a medical malpractice case, which of the following is most likely required for the plaintiff to establish breach of duty?
   1. Direct evidence of the defendant’s intent.
   2. Testimony from a lay witness about what the doctor should have done.
   3. Expert testimony about the accepted practice in the profession.
   4. Proof that the defendant violated a criminal statute.
3. A lawyer fails to file a client’s lawsuit before the statute of limitations expires. The client loses the right to sue. Under what circumstances is the lawyer liable for negligence?
   1. Only if the client can prove the initial case would have succeeded.
   2. Only if the lawyer acted with intent to harm the client.
   3. If the lawyer’s conduct fell below the standard of a reasonably competent lawyer.
   4. Never, because lawyers are immune from negligence claims.

Introduction

Negligence claims against professional people—such as doctors, lawyers, accountants, and architects—are a frequent topic on the MBE. Professionals are not judged by the ordinary reasonable person standard. Instead, they are held to the standard of care and skill expected of a reasonably competent member of their profession acting under similar circumstances.

This area is tested through fact patterns that look very similar to general negligence questions, but the standard of care and the proof required (especially expert testimony) are different. Many exam traps arise when a professional is treated as an ordinary person, or when a bad result is assumed to mean negligence.

Key Term: Professional Standard of Care
The level of knowledge, skill, and diligence ordinarily possessed and used by a reasonably competent member of the same profession, acting in similar circumstances.

This standard is objective. It does not depend on the defendant’s actual level of experience, training, or natural ability. A newly licensed doctor is held to the same standard as an experienced doctor; a novice lawyer is held to the same standard as a reasonably competent lawyer.

Who Counts as a “Professional”

On the MBE, “professional” typically includes:

• Doctors and other licensed healthcare providers.
• Lawyers.
• Accountants and auditors.
• Architects, engineers, and similar design professionals.

The key features are special training and holding oneself out as having specialized knowledge upon which others are invited to rely. A person may be treated as a professional even if not formally licensed, if they in fact perform professional services and the client reasonably relies on their claimed specialized knowledge.

Key Term: Specialist
A professional who holds themselves out as having advanced training or specialized knowledge in a particular branch of the profession, and is judged by the standard of a reasonably competent specialist in that field.

Specialists are not simply held to the standard of a general practitioner; they are measured against other reasonably competent specialists in that area, typically on a national basis.

The Professional Standard of Care

Professionals are required to exercise the level of knowledge, skill, and care that is ordinarily possessed and exercised by other members of their profession in good standing, under similar circumstances. This is sometimes expressed as “the skill and knowledge normally possessed by members of the profession in good standing in similar communities.”

Historically, medical malpractice used a “locality rule,” comparing doctors only to those in the same locality. Modern law, and the MBE, generally assume at least a “same or similar community” standard, and for many specialists, a nationwide standard.

Key Term: Locality Rule
A traditional approach in medical malpractice under which a physician is compared to other physicians practicing in the same or a similar community, rather than a national standard; largely relaxed in modern practice, especially for specialists.

Circumstances affecting the standard include:

• Emergency conditions (e.g., trauma in an ER vs. scheduled elective surgery).
• Availability of equipment or resources.
• Whether the professional is a generalist or specialist.
• Time constraints and information reasonably available at the time of the decision.

The standard remains what a reasonably competent professional would do in those specific circumstances—not what would be ideal with unlimited time and resources.

Comparison with the Ordinary Person Standard

Non-professionals are judged by the general “reasonable person under the circumstances” standard. They are not expected to have specialized knowledge.

Professionals, however, are compared to the hypothetical “reasonably competent professional” in their field. This is a stricter standard in the sense that higher skill and knowledge are expected.

Key Term: Malpractice
Negligence by a professional person in the performance of professional services, judged by the standard of care of the profession rather than the ordinary reasonable person standard.

The MBE often tests this contrast by presenting a scenario where:

• A professional is acting in a professional capacity (standard = professional standard), versus
• A professional is acting as an ordinary person (e.g., a doctor driving a car; standard = ordinary reasonable driver).

The role being performed at the time of the alleged negligence determines which standard applies.

Custom and Expert Evidence

In most professional negligence cases, the standard of care is established by evidence of what is customarily done by other professionals in the field. While custom in ordinary negligence is merely persuasive, custom in professional negligence largely defines the standard.

Key Term: Custom (in Professional Negligence)
The typical or accepted practice among reasonably competent professionals in a given field, used as powerful evidence—often effectively defining—the standard of care in professional negligence cases.

Because jurors usually lack specialized knowledge, custom and expert testimony are central to professional malpractice lawsuits.

Key Term: Expert Testimony
Opinion evidence from a qualified professional in the same field as the defendant, used to establish the applicable standard of care and to explain whether the defendant’s conduct met or breached that standard.

General rules:

• In professional negligence, expert testimony is usually required to:
  • Identify the standard of care; and
  • Explain how the defendant’s conduct did or did not conform to that standard.
• An exception exists for “obvious” negligence within common understanding (e.g., amputating the wrong limb, leaving a sponge inside a patient, drafting a will that fails to distribute any property).

On the MBE, when the fact pattern suggests a technical professional task and the question asks whether the plaintiff can prove breach, look for answer choices mentioning expert testimony.

Breach and Liability

A professional breaches the duty of care if they fail to act as a reasonably competent professional would under similar circumstances. Breach is usually shown by expert evidence that the defendant’s conduct fell below accepted standards.

Key Term: Error of Judgment Rule
A principle that a professional is not negligent merely for choosing between two or more accepted courses of action, even if the chosen course leads to a poor outcome, so long as the choice itself was reasonable and consistent with professional standards.

Professionals are not guarantors of good results. A poor outcome alone does not establish negligence. Instead:

• If the professional chose among accepted methods and applied them skillfully, there is generally no breach, even if the outcome was unfortunate.
• If the professional failed to use the care, skill, or knowledge that a reasonably competent member of the profession would use (for example, ignoring clear lab results, missing obvious red flags, or misapplying a basic rule of law), breach is established.

Causation and damages function as in any negligence claim. The plaintiff must show:

• But-for causation (the malpractice made a difference); and
• Proximate cause (the type of harm was a foreseeable result of the negligence).

Special Rules for Certain Professions

Medical Professionals

Doctors and other healthcare providers are held to the standard of care of a reasonably competent practitioner in the same field, under similar circumstances. For specialists (e.g., cardiologists, neurosurgeons), the comparison is to other reasonably competent specialists in that field, typically on a national standard.

Common medical malpractice issues on the MBE include:

• Diagnostic errors.
• Treatment errors (including surgical technique).
• Monitoring and follow-up failures.
• Informed consent failures.

Informed Consent

In addition to performing the procedure with due care, doctors must obtain informed consent from the patient.

Key Term: Informed Consent
The requirement that a healthcare provider disclose material information about the nature, risks, benefits, and alternatives of a proposed treatment, so that a reasonable patient (or, in some jurisdictions, a reasonable physician) would consider the decision adequately informed.

Two main approaches exist:

• Professional standard: What a reasonably prudent doctor in that field would disclose.
• Patient-centered (material risk) standard: Disclosure of risks that a reasonable patient would find significant in making a decision.

The MBE may not always specify which standard is used, but focus on material risks that should reasonably have been disclosed.

Common exceptions to informed consent:

• Emergencies where the patient is unconscious or unable to consent and delay would risk serious harm.
• Situations where disclosure would itself cause serious harm (therapeutic privilege—used sparingly).
• Risks that are commonly known or so minor/remote that a reasonable patient would not consider them important.

Failure to obtain informed consent is usually treated as negligence (not intentional battery), unless the patient did not consent to any touching at all or the procedure performed is completely different from what was agreed.

Legal Professionals

Lawyers must act as reasonably competent attorneys would under similar circumstances. This includes:

• Knowing or reasonably researching the relevant law.
• Properly investigating the facts.
• Meeting procedural deadlines (e.g., statutes of limitations, filing deadlines).
• Advising clients of significant risks and options.
• Following reasonable client instructions and keeping clients informed.

Common legal malpractice scenarios on the MBE include missing a statute of limitations, failing to file required documents, or giving incorrect advice about clear law.

When a legal malpractice claim concerns an original lawsuit (e.g., failure to file suit on time), the plaintiff must typically prove a “case within a case.”

Key Term: Case Within a Case
In legal malpractice arising from mishandling litigation, the requirement that the plaintiff prove both that the lawyer was negligent and that the original case would have been successful but for that negligence.

Thus, the client must show:

• The lawyer fell below the standard of a reasonably competent attorney; and
• The original claim had merit such that, had it been properly handled, the client would have obtained a better outcome (e.g., won the case or settled more favorably).

Lawyers are not liable for reasonable strategic choices or for errors in unsettled or unclear areas of law, as long as the decision falls within the range of what a reasonably competent lawyer might do.

Accountants, Architects, and Other Professionals

Other professionals—such as accountants, auditors, architects, engineers, and investment advisors—are judged by the same core principle: what would a reasonably competent member of the profession have done under similar circumstances?

For accountants and similar professionals who supply information, liability often overlaps with negligent misrepresentation.

Key Term: Negligent Misrepresentation
A false statement made without due care in a business or professional context, on which the plaintiff justifiably relies to their financial detriment, where the defendant owed a duty of care to that particular plaintiff.

Key points about negligent misrepresentation by professionals:

• It arises in a commercial setting and in a business or professional capacity (e.g., accountant preparing financial statements, lawyer drafting an opinion letter).
• The duty of care is usually limited to:
  • Clients; and
  • In many jurisdictions, a limited class of third parties whom the professional knows will rely on the information (e.g., an identified lender relying on audited statements).
• The plaintiff must prove:
  • A misrepresentation of a material fact.
  • Breach of duty of care in making the statement (no reasonable professional would have made or failed to correct it).
  • Justifiable reliance by the plaintiff.
  • Actual pecuniary loss caused by the misrepresentation.

Architects and engineers may be liable if careless design or supervision creates an unreasonable risk of physical injury or property damage. Their plans and specifications are judged against what a reasonably competent architect or engineer would have done.

Worked Example 1.1

A patient sues a surgeon after suffering complications from an operation. The patient claims the surgeon was negligent in choosing a particular surgical method. At trial, both sides present expert testimony about the accepted methods in the profession. The jury finds that the surgeon’s choice was consistent with accepted practice, even though the outcome was poor. Is the surgeon liable for negligence?

Answer:
No. If the surgeon’s conduct was consistent with accepted professional practice, there is no breach, even if the outcome was poor. Professionals are not guarantors of results, and an adverse outcome alone does not prove negligence when the method chosen is within the range of professionally acceptable options.

Worked Example 1.2

An accountant fails to detect a clear error in a client’s financial statements, resulting in a significant tax penalty for the client. The client sues for negligence. At trial, expert testimony establishes that a reasonably competent accountant would have detected and corrected the error. Is the accountant liable?

Answer:
Yes. The accountant’s conduct fell below the standard of a reasonably competent accountant. The expert evidence shows breach of the professional standard of care, and the tax penalty is a foreseeable financial loss caused by that breach, establishing professional negligence.

Worked Example 1.3

A patient visits an emergency room with chest pain. The doctor briefly examines the patient and sends him home without ordering any tests. The patient later suffers a heart attack. At trial, the plaintiff presents expert testimony that a reasonably competent emergency physician would have ordered an ECG and blood tests given the symptoms. The doctor argues that he simply made a “reasonable judgment call.” Will the plaintiff likely prevail?

Answer:
Yes. The expert testimony indicates that, under the circumstances, ordering diagnostic tests was required by the professional standard of care. The doctor’s failure to do so is not a protected “error of judgment” between acceptable options; it is a deviation from minimum professional standards and thus a breach.

Worked Example 1.4

A lawyer negligently fails to file a personal injury complaint before the statute of limitations expires. The client sues the lawyer for malpractice. Evidence shows that, had the complaint been timely filed, the client would have been unable to prove the defendant’s liability due to lack of witnesses. Is the lawyer liable?

Answer:
Probably not. Even if failing to file on time is negligent, the client must show that the original personal injury case would likely have succeeded but for the lawyer’s negligence (the “case within a case” requirement). Because the client could not prove the original claim, the lawyer’s negligence did not cause any recoverable loss.

Worked Example 1.5

A company hires an accountant to prepare audited financial statements, specifically to be shown to Bank X in support of a loan application. The accountant negligently overstates the company’s assets. A different bank, Bank Y, later relies on the same statements and makes a loan that is not repaid. Bank Y sues the accountant for negligent misrepresentation. Is the accountant liable to Bank Y?

Answer:
In many jurisdictions, no. Negligent misrepresentation liability by professionals is often limited to clients and a narrow group of third parties whom the professional knows and intends to influence (here, Bank X). Because the accountant did not know or intend that Bank Y would rely on the statements, a duty to Bank Y may be lacking, and the claim may fail.

Exam Warnings

• Do not equate a bad outcome with negligence. Always ask whether the professional’s conduct deviated from accepted practice, ideally supported by expert testimony.
• Do not apply the ordinary reasonable person standard when the defendant is clearly acting in a professional capacity.
• In legal malpractice, remember that proof of negligence alone is not enough; the plaintiff must show the original matter would have produced a better result.
• In medical informed consent questions, distinguish between:
  • Negligent treatment (technical error), and
  • Negligent failure to disclose material risks.

Revision Tip

Focus on key phrases for professional negligence:

• “Reasonably competent member of the profession in good standing.”
• “Customary practice in the profession.”
• “Expert testimony is required to establish the standard of care and breach.”

Spotting these cues in MBE fact patterns will help quickly identify that the professional standard, not the ordinary reasonable person standard, governs the analysis.

Key Point Checklist

This article has covered the following key knowledge points:

• Professionals are held to the standard of a reasonably competent member of their profession, not the ordinary person.
• New or inexperienced professionals are judged by the same objective professional standard; lack of experience is not a defense.
• Specialists are held to the standard of reasonably competent specialists in that field, often on a national basis.
• The traditional locality rule for medical malpractice has been softened; the MBE generally assumes a “same or similar community” or national standard.
• The standard of care in professional negligence is largely defined by custom in the profession.
• Expert testimony is usually required to establish both the professional standard of care and breach.
• In rare, obvious cases (e.g., wrong-limb surgery, leaving instruments inside a patient), breach may be found without expert testimony.
• Professionals are not liable for mere errors of judgment when choosing among accepted courses of action, as long as their choices meet professional standards.
• In medical malpractice, informed consent requires disclosure of material risks, subject to limited exceptions (emergency, therapeutic privilege, common knowledge).
• Legal malpractice claims involving litigation require proof of a “case within a case” to establish causation and damages.
• Professionals who provide information (e.g., accountants) may be liable for negligent misrepresentation, but generally only to clients and a limited group of intended third-party users.
• Liability in professional negligence still requires proof of duty, breach, causation, and damages, just as in other negligence claims.

Key Terms and Concepts

• Professional Standard of Care
• Malpractice
• Custom (in Professional Negligence)
• Expert Testimony
• Locality Rule
• Specialist
• Informed Consent
• Error of Judgment Rule
• Negligent Misrepresentation
• Case Within a Case