The difference between negligence and malpractice lies in whose conduct caused your injuries. Normal people have a duty to behave like a reasonable person. Failing to do so is negligence. When working, certain professionals, like lawyers and doctors, have a duty to behave like reasonably careful professionals in their field. Failing to do so is malpractice. Both are civil claims for compensation.
What is negligence?
Negligence is what happens when one person has a duty of care towards another person, and then fails to uphold it. If that failure causes an injury, the victim may be entitled to compensation in a personal injury case.[1]
The standard that you have to meet in order to uphold your duty of care towards others can vary. Typically, people have to meet the standard of care of a reasonably careful person in similar circumstances. Failing to do so is negligence. If your negligent conduct causes an injury, you can be held liable for the victim’s losses.
Some examples of negligence that lead to injuries are:
- driving a motor vehicle while distracted and causing a car accident, and
- failing to remove ice from a sidewalk, causing someone to slip and fall.
What is malpractice?
Malpractice is what happens when a professional is working in their field of expertise and fails to use the same level of skill, knowledge, and care that other reasonably careful professionals in their field would use.[2]
This is a higher standard of care than other, non-professional people have towards one another.
Only certain types of professions are held to this higher standard of care while in the course of their job. Some of those who are held to a higher standard of care include:
- lawyers,
- doctors,
- surgeons,
- medical specialists, like a heart surgeon or an anesthesiologist,
- nurses,
- psychiatrists, and
The professional’s particular field matters. Those who specialize in a particular area will be held to a standard of similar specialists, rather than to non-specialists in the profession.[3]
Note that the accepted standard of care is that of a reasonably careful professional in the same field. A professional’s conduct can be subpar without being malpractice.
Discussing your situation with a medical malpractice attorney can help you understand if you have a case.
What are the differences between the two?
There are several differences between negligence and malpractice that stem from the standard of care that must be met:
| Negligence | Malpractice | |
| Definition | The failure to act like a reasonably prudent person in similar circumstances | The failure to provide a level of care that other reasonably careful professionals in the same field would provide |
| Who it can apply to | Anyone | Certain types of professionals, while they are in the scope of their work |
| Type of legal action | Personal injury claim | Malpractice claim |
| Example | A distracted driver causing a car accident | A surgeon performing a surgery on the wrong body part |
There may also be other differences between a case based on negligent conduct and one based on a professional’s malpractice. Some of these other differences may include:
- a shorter statute of limitations for malpractice claims,
- damage caps, and
- the importance of subject matter expert witnesses to establish the standard of care.
What is a duty of care for medical malpractice vs. negligence?
The duty of care for medical malpractice cases is that of a reasonably careful healthcare professional in the same field. The duty of care for personal injury cases based on ordinary negligence is that of a reasonable person in similar circumstances.
Medical professionals are held to a higher standard of care than ordinary people when they are within the scope of their work. However, this often means that it takes a medical expert’s examination of the medical records to determine what the duty of care actually was. A personal injury lawyer can help make that happen.
Is there a difference between medical malpractice and medical negligence?
Legally, medical malpractice and medical negligence are interchangeable terms. They mean the same thing.[4]
Unfortunately, some other sources online cause confusion by differentiating between the two based on the healthcare professional’s level of intent. According to these sources:
- medical negligence cases are when a healthcare professional accidentally causes harm during medical treatment, and
- medical malpractice is when they make a mistake or decision while being aware of the potentially harmful consequences.[5]
It is the deviation from the professional’s standard of care, not intent, that makes a course of conduct malpractice.
For example: A surgeon accidentally leaves a scalpel inside a patient during the procedure. While it was accidental, it can still amount to malpractice for failing to uphold the surgeon’s standard of care.
What are some common examples of medical malpractice claims?
Some common and especially egregious cases of medical malpractice 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
- performing an unnecessary surgery.
What can I recover in a medical malpractice lawsuit?
If you can prove the elements of a medical malpractice claim, you can recover compensation for all of your legal damages.
The elements of a malpractice claim are:
- the defendant had a duty to use the skills, knowledge, and prudence commonly possessed in the defendant’s field,
- the defendant’s negligent actions amounted to a breach of duty,
- proximate causation between the breach and the plaintiff’s injuries, and
- the extent of the plaintiff’s injuries and losses.[6]
If you can prove each of these elements by a preponderance of the evidence, you are entitled to compensation for all of the losses you suffered from the malpractice. This does not just include your medical bills and pain and suffering. It also other types of damages that cover your professional losses and even the emotional distress of your loved ones, also known as loss of consortium.
If the applicable medical standard of care was egregiously breached, it may lead to punitive damages.
If the victim of medical malpractice died from the poor medical care of their healthcare provider, their loved ones can file a wrongful death claim on the victim’s behalf.
By establishing an attorney-client relationship with a medical malpractice lawyer from a reputable law firm, you can increase the odds of recovering what you deserve in a malpractice suit.
Legal References:
[1] California Civil Jury Instructions (CACI) No. 401.
[2] CACI No. 501.
[3] See, e.g., Creasey v. Hogan, 637 P.2d 114 (1981).
[4] See Florida Statutes 766.106(1)(a) and CACI No. 400.
[5] See Joshua Murdock, “What’s the Difference Between Medical Malpractice and Medical Negligence?” GoodRx Health (March 29, 2022).
