What is the Difference Between Medical Malpractice and Medical Negligence?
Gregg Hollander | April 14, 2021 | Medical Malpractice
When you give your consent for medical treatment, there are always risks of errors and mistakes. Just visiting your family physician for a routine yearly examination has risks. Your doctor could misdiagnose cancer or fail to order diagnostic tests because he overlooked symptoms.
In some cases, medical errors and medical mistakes can lead to serious harm. Patients can sustain permanent impairments because of medical errors. In others, medical mistakes can lead to wrongful death.
Medical Negligence vs. Medical Malpractice
The terms medical negligence and medical malpractice are often used interchangeably. While the terms are related, the terms do not describe the same set of circumstances. The key difference between medical malpractice and medical negligence is “intent.”
We hope that a medical professional does not set out to harm a patient intentionally. However, mistakes and errors can happen in every phase of medical care and treatment. Whether it is a case of medical negligence or medical malpractice, a patient who sustains harm and damages because of medical errors and mistakes can seek compensation by filing a legal claim.
Negligence is the failure to use the same level of care that a reasonable person would have used in the same or similar situation. It does not require that the person intended to cause harm or injury.
Medical negligence is a mistake or error made by a medical professional. For example, say a surgeon makes a surgical error, such as accidentally leaving a foreign object inside the patient during surgery. The surgeon did not intend to harm the patient, but he did make a mistake that could ultimately cause harm to the patient.
On the other hand, medical malpractice is an intentional act. It involves a medical provider failing to follow the accepted medical standard of care given a specific set of circumstances. The doctor may not have intended to injure a patient. However, the doctor intentionally chooses to do something or failed to do something that he knew could have the risk of harming the patient.
For instance, a doctor operates on a patient after using medication to treat allergies that he knew would make him drowsy during the surgery. Another example of malpractice could be a doctor choosing not to order a diagnostic test because the patient was indigent or the insurance company refused payment. Medical malpractice may also occur when a doctor fails to monitor a patient for complications after surgery.
In any case, the patient sustained harm because of the medical provider’s negligence or malpractice. The patient may have a medical malpractice or medical negligence claim against the medical provider for damages caused by the negligence or malpractice.
Seeking Compensation for Medical Malpractice and Medical Negligence
Not every medical mistake or error rises to the level of medical malpractice or medical negligence. The patient must have been harmed and sustained damages for the patient to recover compensation for damages.
You must prove all of the legal elements of a negligence or malpractice claim to recover compensation for your damages.
The legal elements of a medical malpractice or medical negligence claim are:
- The medical professional owed the patient of duty of care
- The medical professional breached the duty of care
- The breach caused the patient harm.
- The patient sustained damages because of the breach
If you cannot prove each of the above elements, you cannot win a medical malpractice case. Generally, the two most difficult elements to prove are the breach of duty and how it caused the patient’s injury.
In most cases, medical experts testify as to the acceptable standard of care that should have been used in your case. The accepted standard of care is based on what a doctor of similar training and experience would have done in the same or similar situation. The medical expert also explains how the breach of care directly caused your injuries and damages.
Many medical malpractice and medical negligence cases come down to dueling medical experts. The jury listens to the testimony of the experts and reviews the evidence presented in court to determine whether the doctor is guilty of malpractice or negligence.
Deciding Whether You Have a Medical Malpractice Case
Medical malpractice and medical negligence cases are incredibly complex personal injury claims. An experienced medical malpractice lawyer can review your case to determine whether you have a cause of action against the medical provider. Proceeding without an attorney who has experience handling medical malpractice claims could negatively impact the outcome of your injury claim.