Negligence vs Malpractice – What is the difference?

Posted on August 15, 2022

The difference between negligence and malpractice lies in the standard of care to which the wrongdoer is held.

Everyone has a duty to behave as a reasonably cautious and careful person. Breaching this standard of care, and thereby hurting someone, constitutes negligence.

But certain professionals, such as doctors or lawyers, are held to a higher standard of care in their work. Falling below that standard can amount to malpractice.

Because most personal injury cases involving malpractice are for medical malpractice, this article focuses on that aspect of the law.

What are the standards of care for malpractice vs. negligence?

The core difference between negligence and malpractice rests in the standard of care that is owed to you, the victim. This standard of care is different in two ways:

1. who has the duty of care, and
2. what the standard entails.

Negligence

Nearly everyone can commit negligence. Nearly everyone has a duty of care to behave as a reasonable person would in the same or similar circumstances. Failing to act like a reasonably prudent person amounts to negligence. If someone else’s negligence causes you to get hurt, the negligent party can be held liable. The law can make them compensate you for your losses.

Some examples of negligence include:

• driving a motor vehicle while distracted and causing a car accident,
• failing to remove ice from a sidewalk, causing someone to slip and fall, and
• poorly containing a dog that is known to be aggressive, which then escapes and causes a dog bite.

Note that these examples are all of normal people, doing negligent things. Some of the only people who cannot be deemed negligent are young children. Different states use different rules for children. Two common methods for designing a duty of care for children are:

1. comparing the child to other minors of a similar age, intelligence, and experience,¹ and
2. the rule of sevens, which holds that children under 7 are incapable of negligence, those between 7 and 14 are presumed to be incapable of negligence, and those over 14 are presumed to be capable of negligence.²

Malpractice

Malpractice is a legal concept that applies only to certain professionals. When working in their field of expertise, these professionals are expected to abide by a higher standard of care than just a reasonable person. Instead, they are expected to use the same level of skill, knowledge, and care that other reasonably careful professionals in their field would use.³

Some examples of professionals who are held to a higher standard of care are:

• lawyers,
• veterinarians,
• psychiatrists,
• doctors,
• surgeons,
• medical specialists, like a heart surgeon or an anesthesiologist, and
• nurses.

People in these roles are generally required to have and to use the knowledge and skills ordinarily possessed by others in their profession.⁴

The professional’s particular field matters. For example, during an open heart surgery, a general surgeon would have to uphold a lower standard of care than a surgeon who specializes in open heart procedures. These specialists are expected to have a higher degree of skill than more general practitioners.⁵

The standard of care is the possession and use of the minimal skills needed for the profession. Medical care can be subpar without being malpractice.

Professionals have to be acting in the course of their job in order to commit malpractice. For example, doctors cannot commit medical malpractice for causing a car accident. Outside their scope of work, professionals are generally held to the standard of care of a reasonable person.

How do I prove malpractice?

Proving malpractice is generally more difficult than proving that someone was negligent. It often takes the testimony of an expert witness in the defendant’s field. That witness would have to give his or her expert opinion that the defendant’s conduct did not live up to the minimal standards in the field.

In practice, this can be quite difficult. It involves finding a professional who is willing to testify against a fellow worker. Many professionals do not want to set a standard of conduct that they might not meet in the future.

How does this fit into a personal injury case?

Proving that the defendant was negligent or committed malpractice is an essential element of a personal injury, or tort, case. To be successful and to recover compensation, you have to prove that:

1. the defendant owed you a duty of care,
2. the defendant breached that duty of care,
3. the defendant’s breach caused your injuries, and
4. you were, in fact, harmed.

Establishing the standard of care that the medical professional owed you is a huge part of showing that their actions amount to a breach of duty.

In addition to these 2 elements, you also have to establish a chain of causation between the malpractice and your injuries. This involves showing 2 things:

1. but for the negligent actions of your healthcare provider, you would not have gotten hurt, and
2. the breach of the medical standard of care was not so far removed from your injuries that it would be unfair to hold the healthcare provider liable.

Finally, to be successful in a medical malpractice claim, you have to show that you were harmed by the negligence. This often takes the form of:

• medical bills,
• lost wages and earning capacity,
• pain and suffering, and
• loss of consortium for your family members.

By establishing an attorney-client relationship with a medical malpractice lawyer from a reputable law firm, you can pursue compensation for all of these losses. A medical malpractice attorney can provide legal advice, advocate on your behalf, pursue a fair settlement offer, and file a medical malpractice lawsuit if necessary.

Is there a difference between medical negligence and malpractice?

In some states, medical malpractice and medical negligence are explicitly interchangeable terms for the same thing.⁶

However, some sources differentiate between the two based on the doctor’s level of intent:

• medical negligence is when a healthcare professional accidentally causes harm, and
• medical malpractice is when a healthcare professional makes a mistake or a decision while aware of the potentially harmful consequences.⁷

However, the healthcare professional’s awareness does not turn a mistake into malpractice. For example, a classic illustration of medical malpractice is to leave a surgical sponge inside a patient after a procedure. In nearly all of these cases, the sponge is accidentally left inside the victim.

Instead, it can be helpful to think of medical negligence as a mistake or shortcoming that is not severe enough to amount to malpractice.

What are some examples of medical malpractice?

Medical malpractice cases can take a variety of different forms and fact patterns. Some common and especially egregious scenarios that victims of medical malpractice suffer include:

• medication errors, like prescribing the wrong amount or the wrong medication,
• the misdiagnosis of a medical condition,
• surgical errors,
• wrong site surgeries,
• leaving surgical equipment inside a patient, or
• executing an unnecessary surgery.

Some of these examples are so bad that they lead to verdicts that include punitive damages. Some lead to wrongful death claims. A personal injury attorney can help file an appropriate legal action for your situation.

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