Malpractice vs Negligence: How Can You Tell the Difference?

Most doctors don’t want you to know this, but medical mistakes are actually the third leading cause of death in the United States. 

When we visit a doctor, we like to think of them as an experienced, highly-trained professional who can be trusted to perform a highly-skilled job that we cannot perform ourselves. And most of the time, medical professionals are highly competent at their jobs. 

But sometimes, doctors make mistakes, and those mistakes have lasting consequences on their patients’ health and wellbeing. 

However, before you visit an attorney, it’s important to understand whether you’re dealing with medical malpractice or medical negligence. The terms are often used synonymously, but the difference between malpractice vs negligence can drastically change the nature of your case. 

Here’s what you need to know about the difference, and what it means for your lawsuit options. 

What Is Medical Malpractice? 

Medical malpractice occurs when a patient is harmed by a medical professional who fails to competently perform their medical duties, typically through a negligent act or omission. 

In legal terms, the medical professional deviates from the recognized standard of care in treating a patient. Standard of care is what a reasonably prudent medical professional would or would not have done under the same circumstances with the same available information. 

This is used as a benchmark against the doctor’s work. The doctor’s defense would have to prove that another doctor would have made the same decisions under the same circumstances, and thus the doctor’s actions align with standard of care. 

What You Need for a Claim

In order to prove a medical malpractice claim, you need to prove a few basic facts. 

First, you have to show that there was a doctor-patient relationship (that is, you hired the doctor and the doctor agreed to be hired). This is the easiest way to prove that the doctor owed you a duty of care. 

Second, you need to prove that the doctor was negligent. Note that this is not the same thing as providing medical care you were unhappy with. You have to show that the doctor caused harm to you in a way that a competent doctor would not have under the same circumstances. 

The doctor’s care does not need to be the best possible, but it does need to be reasonably skillful and careful. 

Third, you have to prove that the doctor’s negligence directly resulted in your injury. This is the tricky part of the lawsuit, as malpractice cases typically involve patients who were already sick or injured. There is a question as to whether the doctor did cause harm, even if they were negligent. 

For example, if a patient dies after treatment for late-stage lung cancer and the doctor did do something negligent, it can be difficult to prove that the doctor’s negligence is responsible for their death rather than lung cancer. 

As such, the patient must show that the doctor’s negligence was more likely than not responsible for their injury. 

Finally, the patient must prove that the injury led to specific legal damages, such as mental anguish, physical pain, or lost work an earning capacity. 

Common Types of Medical Malpractice

The cases that can lead to a medical malpractice lawsuit are many and varied, as there are a huge variety of ways for a doctor to be negligent. 

Some of the most common medical malpractice lawsuits are: 

• Failure to diagnose
• Improper treatment
• Failure to warn patients of risks

For example, if a doctor failed to inform a patient of the risks of a certain surgical procedure, they failed their duty of informed consent. In other words, if a patient would have elected not to go through with a procedure once informed of the risks, the doctor may be liable if the patient is injured during that procedure. 

What Is Medical Negligence?

Medical negligence is often used synonymously with medical malpractice, but they are slightly different concepts with different legal consequences. Before we delve into how and why they’re different, let’s talk about what negligence is and is not. 

Medical negligence refers to a failure to exercise care that a reasonably prudent medical professional would have exercised under the same circumstances. They treat their patients in a way that deviates from the legal and medically-accepted standard of care. 

What You Need for a Claim

Because medical negligence, like malpractice, is a subset of tort law, many of the basic requirements for establishing a claim remain the same. For those who are rusty on their legal terminology, tort law is a type of civil law intended to redress wrongs done to a person and provide relief from the harmful acts of others. 

You still need to prove that a doctor-patient relationship existed to establish a duty of care. You still need to prove that the doctor was negligent and that their negligence resulted in your injury. And you still need to prove that the injury resulted in specific legal damages. 

To be clear, negligence on its own is not sufficient to provide evidence for a claim. There must be harm inflicted on a patient. 

Common Types of Medical Negligence

It’s tricky to differentiate between negligence and malpractice on the basis of the case alone because many of the same types of cases that can qualify as medical negligence could also, theoretically, fall under the category of a medical malpractice lawsuit. 

For example, you could sue for medical negligence as a result of failure to diagnose, improper treatment, or a failure to warn patients of known risks attached to a given medication or procedure. 

It isn’t enough to look at the type of case to say whether or not it’s a negligence or malpractice case. That depends on the details of the case itself.

So, for example, if you walked into this law office and said that you had an improper treatment lawsuit, they wouldn’t be able to say off the cuff whether it was negligence or malpractice. 

Malpractice vs Negligence: Subtle Differences

With that in mind, let’s talk about medical malpractice vs negligence and what separates the two cases. 

This is confusing for many people because, on the surface, it sounds like a question of semantics. But there are subtle implications that change the nature of your case. 

Malpractice Usually Includes Negligence

If you’ve been paying attention, you’ll notice that we made several references to proving negligence when we talked about how to establish your malpractice claim. That’s because negligence is a critical component of malpractice but not vice versa. 

That is, you have to have negligence in order to establish a medical malpractice case, but not all negligence cases are necessarily medical malpractice. 

This is because medical negligence does not always result in injury to the patient, which is another critical element of establishing a medical malpractice case. 

Question of Intent

In many cases, the difference between a negligence and malpractice case comes down to a question of intent. 

Tort law differentiates between negligent and intentional torts by referencing the actor’s state of mind, which helps clarify the gap between malpractice and negligence. In tort law, a person who is negligent caused harm through carelessness. They did not mean to cause harm, but they still caused it. 

Because of this, they are still legally responsible for the consequences of their carelessness. 

Intentional torts, on the other hand, are when one person acts with the direct intention of causing harm. However, this can get tricky to navigate in medical lawsuits. To understand how this works, let’s look at two examples. 

Negligence vs Malpractice in Action

Let’s say a woman visits an emergency room with a variety of concerning symptoms. However, she ends up waiting for 24 hours to be seen by a doctor and collapses on the floor in convulsions and dies as a result. 

This could have been prevented without the need for doctoral knowledge simply by getting the woman seen by a doctor in a reasonable timespan. By ignoring or forgetting her, the medical professionals were negligent toward her. 

Now let’s say that a woman needs an operation to drill a hole in her skull in order to stop bleeding from her brain. The surgeon begins the operation by drilling a hole in the wrong side of her head, despite the fact that a CAT scan was performed mere moments before. 

The woman survives, but the doctor’s mistake led to serious complications that could have been prevented simply by drilling a hole in the correct side of the woman’s skull. 

Our first example is a matter of medical negligence, while the second example is medical malpractice. 

In the first example, medical professionals failed to enact reasonable care in an instance where any reasonable person is capable of doing so. In the second example, we’re dealing with professional negligence. They made a mistake that simply should not have occurred, leading to unnecessary and irreversible results.

Taking Control of Your Medical Case

The difference between medical malpractice vs negligence is more than legal semantics. It changes what doctors can and cannot be held responsible for–and can even change whether or not you have grounds to sue a doctor. 

Either way, it’s important to remember that you have options in your case, and you can recover from the harm done to you. 

Want more great legal articles? Make sure to check out our blog for more useful advice.