Glossary · Legal Concept
Breach of Duty
The element of a negligence claim that requires the plaintiff to prove the defendant's conduct fell below the applicable standard of care.
Also known as: breach of standard of care, deviation from standard
What it is
Breach of duty is the second element of any negligence claim, including medical malpractice. After establishing that the defendant owed the plaintiff a legal duty (the doctor-patient relationship in malpractice), the plaintiff must prove that the defendant's actual conduct fell below the standard of care that duty required.
How it is proven in malpractice
Breach is almost always proven through expert testimony. The expert must articulate, in concrete and specific terms, what the standard of care required and how the defendant's actual conduct deviated. "The doctor was negligent" is conclusory and inadmissible; the testimony must specify the act or omission and explain why it fell below the standard.
The custom defense
Defendants frequently respond that their conduct conformed to industry custom. Under T.J. Hooper and its progeny, custom is evidence of reasonable care but not a complete defense; an entire industry can lag behind reasonable prudence by failing to adopt safer available practices. Plaintiff counsel can argue that the customary practice itself was unreasonable.
Distinction from causation
Breach is the question of what the defendant did wrong. Causation is the question of whether that breach actually caused the plaintiff's injury. Both must be proven; either alone is insufficient. A clear breach that did not cause the injury supports no recovery; an injury caused without a breach (a bad outcome despite competent care) supports no recovery.
In settlement strategy
Breach is often the easiest element for the plaintiff in cases with obvious deviations (retained objects, wrong-site surgery, unmonitored medication errors) and the hardest in cases involving judgment calls within an accepted range of practice.
See Also
- Standard of Care — The level of skill, diligence, and judgment a reasonably competent practitioner in the same specialty would exercise under similar circumstances, used as the benchmark for proving negligence in a malpractice case.
- Industry Custom — The prevailing practice of a profession or industry, used as evidence of (but not conclusive proof of) the standard of care under the doctrine of T.J. Hooper.
- T.J. Hooper — The 1932 Second Circuit case (60 F.2d 737) in which Judge Learned Hand held that an entire industry's customary practice can itself be unreasonably negligent if better, available safety measures are ignored.
- Expert Witness — A qualified specialist retained to give opinion testimony on issues requiring specialized knowledge, indispensable in medical malpractice for establishing the standard of care, breach, and causation.