What is the difference between negligence and malpractice give examples

When a medical provider’s actions or inactions fail to meet the medical standard of care, their behavior constitutes medical negligence. If their medical negligence causes their patient to suffer an injury, it becomes medical malpractice. When the patient can prove the various legal elements that add up to medical malpractice, they can take legal action against the negligent medical provider to recover an award for their injury.

Medical Malpractice—More Common Than You Think

When a situation arises that gives you a reason to think you have a cause for medical malpractice, it is useful to understand some of the legal standards and differences between medical malpractice and negligence.

Despite preventive measures from medical practitioners, as well as rules and regulations constantly being updated to improve patient safety, errors still happen. According to BMJ, medical errors are the third greatest cause of death in the United States, second only to heart disease and cancer.

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Examples of Medical Malpractice

Medical malpractice can take many forms. Some examples where medical negligence could lead to a lawsuit include:

• Failure to diagnose.
• Surgical errors or unnecessary surgery.
• Prescribing the wrong medication.
• Disregarding or failing to consider appropriate patient history.
• Not ordering proper tests

If you think you have sustained an injury due to medical negligence where a healthcare provider has failed to act in accordance with the requirements of standard medical practice, report it to the State Medical Practices Board as soon as possible.

Knowing Whether Medical Malpractice and/or Negligence Occurred

You may find it difficult to ascertain the presence of medical malpractice. In some cases, such as the wrong limb being amputated, or performing a procedure on the wrong patient, for example, the negligence and injury are clearly evident. In other cases, the patient may not immediately recognize the malpractice, as the injury may not manifest until a later date—or medical providers do not offer details about the mistakes they made.

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Receiving Compensation for Your Injuries

Medical injuries can impact your life in many ways—financially, physically, and emotionally. For this reason, your lawyer will conduct a thorough evaluation of all the ways in which your injury affects you, in the past, present, and future.

Your lawyer will assign value to these damages, both economic and non-economic, and present them to the medical provider’s insurer. They will negotiate toward a fair settlement. If they cannot agree on an amount, your lawyer can file a lawsuit and take the matter to civil court.

Whether via an insurance settlement or a court award, you may receive compensation for the following types of damages, among others:

Medical Expenses

You may face considerable medical bills, including doctor visits, therapy, prescription drugs, corrective surgery, and future medical expenses.

Pain and Suffering

This includes not only awards for physical pain, but also the emotional distress that could accompany your injuries, such as anxiety and depression.

Loss of Consortium

If a wrongful death occurs as a consequence of medical malpractice or negligence, family members might receive compensation through a wrongful death claim. Other examples of loss of consortium include a loss of ‘family benefits,’ such as sexual relations, companionship, affection, and comfort.

Loss of Wages or Future Earning Capacity

With severe injuries that permanently change your ability to work, you could seek compensation for lost wages, including damages for future earning potential.

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Time Limits for Making A Claim

Some states impose time limits on how long you have to make a claim. These limitations appear under the states’ statutes of limitations. If signs or symptoms of injury or illness do not immediately appear, states generally add on additional time, starting the limitations clock on the date the patient discovered their injury or illness.

Steps to Take If You Think You Have a Medical Malpractice Claim

If you believe you suffered harm due to the negligence of a medical provider, do your research and consult with a medical malpractice attorney who can explain your legal rights.

Proving medical malpractice involves in-depth knowledge of both medicine and the law. Your attorney should be able to present, explain, and support evidence in complex medical and legal cases.

For a free consultation about your case of medical malpractice, call Ben Crump Law, PLLC. We can help you in your efforts to get the justice you deserve. Call (800) 641-8998.

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Key takeaways:

• Everybody makes mistakes. But in some cases, a healthcare professional’s mistake can be considered medical malpractice or medical negligence if it causes an injury. 

• The difference between medical malpractice and medical negligence typically boils down to a healthcare professional’s intent or awareness. 

• If you think you’ve been a victim of malpractice or negligence, you have a right to look into your situation to see what happened. 

When you want or need healthcare services, you obviously want some aspect of your health to get better. But, sometimes, your plans experience a hiccup — to say the least. It’s possible to experience an injury as a result of medical care gone wrong. These injuries may be mild, severe, or even life-threatening. 

If you were harmed after receiving healthcare services, you may be curious about what your options are. A good starting point is to review the events leading up to your injury. What was my healthcare provider thinking? What was the context of my situation while it was unfolding? 

Depending on your case, you might wonder whether you were subject to medical malpractice or medical negligence. A medical malpractice lawyer is best equipped to help you navigate your options. Still, it's helpful to know the general differences between these two legal claims.

Here, we’ll talk about medical malpractice and medical negligence — what they are, how they’re different, and what to do if you think you’ve been affected. 

How is medical malpractice different from medical negligence?

Everyone is human. Humans make mistakes. Healthcare professionals are trained humans that work in a medical setting. But given the context of healthcare services, these mistakes can have serious consequences. 

If a healthcare professional makes a mistake that results in an injury, there’s a chance it could be considered medical malpractice or medical negligence. 

At their core, these are similar concepts. But the difference typically comes down to the intent or awareness of the healthcare professional. 

• Medical negligence: This is when a healthcare professional makes a decision or performs an action that accidentally causes harm to their patient. 

• Medical malpractice: A healthcare professional should never try to cause harm. But if a healthcare professional is aware of the potential consequences before making a mistake, it could be considered medical malpractice. They likely made a mistake because they didn’t follow proper guidelines or protocols.

Keep in mind: These are simple definitions. A healthcare professional or medical malpractice lawyer can help you decide if either or both of these apply to your situation. 

What are examples of medical malpractice and medical negligence?

Let's review some examples of these two claims.

A surgeon is performing a routine procedure and accidentally nicks a blood vessel, causing you injury. This would be an example of medical negligence.

In contrast, a situation might qualify as medical malpractice if a surgeon performs a surgery without running necessary tests first, thus leading to an injury.  

Each situation is very fact-dependent. It’s best to check with a trained legal professional about whether the care you received could rise to the level of either medical negligence or malpractice. 

Can a medical incident be both malpractice and negligence?

There’s often a fuzzy line between the two. In fact, medical malpractice can be considered a type of medical negligence. 

If a mistake is made that results in an injury, a lot of thought will go into how to classify the situation. A medical malpractice lawyer or court of law could consider many factors, such as:

• What happened leading up to the mistake?

• Was the healthcare professional aware of the possible consequences before the action or decision was made?  

• Were protocols in place to prevent the mistake from happening? Were the protocols ignored?

• Was the healthcare professional trying to offer the best treatment possible?

• Was it an honest mistake that could have happened to anybody?

What is duty of care, and how does it affect cases of malpractice or negligence?

Duty of care is a big consideration when deciding to classify a case as medical malpractice or medical negligence. 

But what exactly is it? Essentially, if there’s a relationship in place between you and a healthcare provider, they have a legal duty to treat you in the best way that they can.

For instance, your designated primary care provider (PCP) has a legal duty to care for you. But a different provider at the same office who’s never seen you wouldn’t necessarily have this duty of care. Whether a duty of care is established can impact the success of a potential malpractice or negligence claim. 

What should you do if you experience medical malpractice or negligence?

Countless things in life can go wrong. This is also true in the healthcare field. If you’re injured while receiving healthcare services, there’s a chance it could be medical malpractice, medical negligence, or neither. 

Regardless, you have a right to receive the best possible medical treatment (“standard of care”) for your condition when it exists. You also have a right to seek compensation for damages if the situation is appropriate. 

If you think you’ve been affected by medical malpractice or medical negligence, you have a few options to consider. 

• Bring your concerns to your medical team. If you think you've been affected by medical malpractice or medical negligence, bring this up to your healthcare team. Healthcare institutions have teams of people who work on these cases. They can help you understand what went wrong and guide communication with your healthcare providers.

• Contact the state licensing board. Consider talking to their respective licensing board. For example, you could contact the Medical Board of California for a physician or the California State Board of Pharmacy for a pharmacist. 

• Find a medical malpractice lawyer and talk to them. A medical malpractice lawyer or personal injury attorney can help you weigh your options. After learning more about your situation, they can help you figure out possible action steps. Here’s an online directory to help you find one. 

Medical malpractice and medical negligence are close in definition, but they’re each unique. Medical malpractice is when a healthcare professional is aware of the possible consequences before making a mistake that led to an injury. Medical negligence is when a healthcare professional makes an honest mistake that leads to an injury. 

Regardless of the legal terminology, you have a right to see out your situation. This could be done with or without legal action. In some cases, you could get some form of compensation for damages. 

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