·  Legal News, Analysis, & Commentary

Medical Malpractice

The Difference Between Medical Malpractice and Negligence

— September 14, 2021

One key area in which medical negligence differs from traditional negligence is in the duty of care element.

You may hear the terms “medical malpractice” and “medical negligence” used interchangeably to refer to lawsuits against doctors, surgeons, and other medical care providers. However, the two phrases refer to two distinct concepts with substantially differing qualifications and consequences.

Medical malpractice requires an additional element that medical negligence does not: intent. To prove medical malpractice, a plaintiff must show that the medical care provider acted (or failed to act) while aware of the potential consequences to the patient. Medical negligence may be shown merely by proving that a medical “mistake” caused the patient harm. Further, the compensation available to a medical malpractice victim in a lawsuit is different than what is available to a medical negligence victim. To find out more, be sure to speak to a qualified medical malpractice and negligence attorney about your options.

What is Medical Negligence?

Medical negligence is the term that is used to refer to “mistakes” made by medical care providers which cause or exacerbate injuries to their patients. Medical negligence is similar in most ways to negligence in other areas, such as slip and falls. There are four elements of negligence necessary for a successful lawsuit: duty of care, breach of duty, causation, and damages.

One key area in which medical negligence differs from traditional negligence is in the duty of care element. Medical care providers such as doctors owe their patients a potentially higher and more specific standard of care than others who are prescribed a duty in the traditional sense, such as property owners. This standard of care exists to highlight both the significant amount of trust that a patient must place in their medical provider as well as the extensive level of schooling and training that medical care providers must go through to qualify as a professional in their field.

How Is Medical Malpractice Different than Medical Negligence?

Medical malpractice is the more commonly heard phrase when you think about medical care lawsuits. However, medical malpractice requires a bit more than what might be considered medical negligence.

The elements of medical malpractice are largely the same as those for medical negligence, with one notable difference. Medical malpractice requires a showing of knowledge or intent on the part of the medical provider. In other words, the medical professional must have acted (or failed to act) while aware of the potential consequences of their behavior. This is not to say that the medical professional intended the harm to occur. The intent requirement merely serves to recognize that doctors – professionals with training, licenses, and experience – should be aware of the possible consequences of their actions and inactions.

Examples of Medical Negligence vs. Medical Malpractice

Sometimes, the best way to illustrate the difference between two complex concepts is to use real-world examples of both to contrast them against one another. Below, we will name some of the most common examples of liability in medical care to show the difference between the two allegations.

Failure to Diagnose

Instances where a patient seeks treatment and their doctor fails to identify the issue do not always impute liability. However, where it is determined that the doctor would have properly identified the condition but decided not to give certain required tests during the diagnostic process, the doctor has committed medical malpractice

Conversely, it is simply negligence if the doctor failed to identify the condition due to a mistake made during laboratory testing or charting of vital signs. If the doctor did not take shortcuts when it came to the diagnostic process, this could be considered medical negligence.

Surgical Errors

Doctor performing surgery; image by Jafar Ahmed, via
Doctor performing surgery; image by Jafar Ahmed, via

Surgical procedures are complex and dangerous undertakings, regardless of the nature of the procedure or the patient in question. Despite the lengthy training process, surgeons are human, too, and they are prone to mistakes. Such mistakes, like a tool or sponge being left in a surgical cavity, are often enough to indicate medical negligence.

Medical malpractice in surgery is quite another story. In order to find the intent element of malpractice, the surgeon’s actions must be done with knowledge of the consequences. A surgeon opting for a riskier technique or operating while under the influence of drugs or alcohol are common instances of medical malpractice in surgery.

Damages for Medical Malpractice and Negligence

Another area where medical malpractice and medical negligence diverge is in the area of damages. “Damages” are the legal method of calculating the compensation that the victim deserves as a result of their injuries. Plaintiffs may recover damages under various theories. Economic damages compensate the plaintiff for the direct costs of their injuries, such as medical expenses and lost time at work. Non-economic damages will account for the pain and suffering that a plaintiff has and will experience following the incident and their injuries. In instances of medical malpractice, non-economic damages may be capped according to state law. The existence and value of these caps vary state by state.

However, in certain instances of medical malpractice, there may be a third type of damages available to plaintiffs. Punitive damages are assessed by a court where the nature of the malpractice is particularly heinous. They are calculated based on the conduct of the liable party rather than the condition of the victim. Punitive damages are used by the court to punish particularly bad actors and to discourage those who might otherwise behave similarly in the future.

Join the conversation!