Saturday, May 15, 2010

The Double Standard in PA Legal Malpractice Lawsuits

There is a double standard for lawyers when it comes to Pennsylvania professional malpractice law.

As background, a typical negligence case is governed by the concept of Comparative Negligence. In such cases, the Jury and/or Judge examine the role the Defendant and Plaintiff played in bringing about the Plaintiff’s harm. When comparative negligence applies, if the Plaintiff, for example, is found to be 20% negligent and the Defendant 80% then the Plaintiff is compensated for 80% of the total damages awarded. In the context of PA Comparative negligence, so long as the Defendant is found to be 50% or more negligent the Plaintiff will recover the full amount of damages less his/her percent of responsibility.

On the other hand, Contributory Negligence is a much harsher rule. With contributory negligence, if the Plaintiff’s negligence contributed in any manner (even 1%) to his injuries then he is completely barred from recovering anything.


In PA, there is a Comparative Negligence Act but it applies only to actions seeking damages for death, bodily injury, or property damage. Practically every medical malpractice, architectural or engineering malpractice is going to involve death, bodily injury or property damage. All of these actions are governed by the more equitable doctrine of comparative negligence.

The double standard comes from the Superior Court’s decision in Rizzo v. Michner, 584 A.2d 973, that determined a legal malpractice claim to be for economic loss only. As a result legal malpractice cases have been found to fall outside the scope of the comparative negligence act. Thus, contributory negligence is applied to legal malpractices cases.

Why should lawyers be the only professionals that enjoy this harsher standard for Plaintiffs? Lawyers err in their practice just like doctors and accountants do. Logically this double standard has a basis in fact, just look at the wording of the statute. But fundamentally there is something about this that seems unfair. There are a number of other states that uniformly apply comparative negligence to all professional malpractice cases. I can’t help but think Pennsylvania should fall into the same line. Share this post :
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