Pobody’s nerfect. Oh, excuse us–it’s “nobody’s perfect.” Everyone makes mistakes. But a medical mistake can have much greater consequences than a typo. In “legalese”, those errors are classified as medical malpractice and negligence. Have you been injured because of a doctor’s mistake? You’re probably wondering which “bucket” your case belongs in. It’s helpful to know the difference between malpractice vs negligence when deciding what claims to file.
Here, we’ll discuss these two terms–their definitions and differences. We’ll also talk about the damages associated with each, plus what steps to take if you experience either one.
Malpractice Vs Negligence
The terms “medical malpractice” and “medical negligence” are often used interchangeably. But getting down to the nitty-gritty, there are differences between them.
The main difference has to do with the offending healthcare worker’s intentions. Were they aware that their actions would cause harm? Or was it an honest mistake?
What Is Medical Negligence?
Medical negligence refers to an unintentional mistake. The doctor was reckless or careless. They provided care that fell short of the accepted standard. It was an accident, but a harmful one. Negligence is not always malpractice. Also, a non-professional person can be negligent, but cannot commit malpractice.
What Is Medical Malpractice?
Medical malpractice is a more serious form of negligence by a medical professional. It’s more serious because it’s a breach of the professional standard of care the medical professional owes their patient. A non-professional can’t commit medical malpractice because malpractice specifically refers to professional negligence by a licensed healthcare provider.
Examples Of Medical Negligence
Medical negligence can take many forms. Let’s look at some examples.
- A nurse grabs the wrong medicine vial because they look similar. They administer the erroneous drug and harm the patient.
- Surgeon nicks a nearby organ during surgery.
- A doctor misreads a test and makes the wrong diagnosis.
- Medical staff leave equipment on the floor and the patient trips over it.
- Anesthesiologist administers the incorrect dosage to a patient who is undergoing surgery.
- An elderly patient falls down while trying to reach the restroom. Because of understaffing, no nurses were available to help.
Remember, the key difference between malpractice vs negligence is intent. So the examples above could also be malpractice, if the offending party knew they were causing harm.
Examples Of Medical Malpractice
When it comes to malpractice vs negligence, you might consider negligence the “lesser evil”. This is because a case of malpractice usually involves bad intent. Or at the very least, the doctor knows they’re making a mistake, but proceeds anyway. Here are some examples:
- Surgeon operates on a patient without running essential tests first.
- Doctor doesn’t check a patient’s medical history and makes the wrong diagnosis
- A surgeon carves his initials into a patient during a C-section (Here’s an example of a real incident)
- Doctor prescribes a medication that has a negative interaction with a drug the patient is already taking.
- Medical staff verbally insult or physically assault a patient
- A nurse knowingly uses a contaminated needle to draw blood
Can An Incident Be Both Malpractice And Negligence?
It’s possible. There’s plenty of overlap between malpractice and negligence. Oftentimes, the law considers medical malpractice to be a type of medical negligence.
So how do you decide what type of claim to file? This is where you’ll need professional help. A qualified malpractice lawyer can help you make the right classification. They will help you sort through the complicated facts of your case, and consider factors like:
- The “order of events” leading up to your injury. (What happened, and when?)
- Whether the offending doctor was aware of the consequences before they made the negligent decision.
- The rules or protocols that applied to the situation. Did someone break them?
- Whether the offending doctor acted alone or not. Were any other staff members involved?
- The doctor’s intentions. Was this an honest mistake? Or willful malpractice?
- The “duty of care”. What was your doctor’s legal duty toward you? Were they trying to fulfill it as best as possible?
Making the right classification between malpractice and negligence can affect the success of your claim. It can also impact the amount of damages you collect. Next, we’ll explain why.
Malpractice Vs Negligence: Differences In Damages
Victims can collect monetary damages for both negligence and malpractice cases. These damages can pay for some or all losses. What kinds of losses can you recover? Here are some examples:
- Pain and physical suffering
- Mental/emotional suffering
- Medical bills
- Loss of ability to work or lost wages.
- Future medical care
- Loss of quality of life
- Loss of companionship (In wrongful death cases)
Those are examples of economic and non-economic damages. But there’s one more type of award you may win for cases of malpractice: punitive damages. These special fines don’t apply to cases of negligence.
What are punitive damages?
Punitive damages go beyond compensation. Courts award them as punishment to the defendant. They’re meant to discourage malicious behavior among physicians.
In general, courts set the bar high for punitive damages. It should be obvious that the doctor had bad intentions. For example, they injure the patient on purpose during an operation, or administer a fatal dose of medication.
A court might also award punitive damages if a doctor’s negligent actions were unintentional, but they concealed them. Perhaps they knew their mistake harmed the patient, but took steps to hide it. Then the patient suffered worse harm than they would have had they known about the incident.
How are damages negotiated?
In most cases, you’ll negotiate with the offending party to settle. If they don’t offer a settlement, or the amount isn’t acceptable to you, you can take them to court. This can drag your case out a lot longer. But sometimes victims recover larger amounts through taking this route.
Who pays for malpractice and negligence?
Usually, the hospital or doctor’s insurance company is the one who actually forks up the cash. You can opt to receive the money as one lump sum. Otherwise you can choose to collect it in monthly or yearly installments.
Whom Can You Sue For Malpractice & Negligence?
Doctors aren’t the only medical professionals who commit malpractice and negligence. Other personnel make errors, too.
In fact, the more parties you name in your lawsuit, the more damages you may recover. We’re not saying you should play the blame game and point fingers at everyone who stepped foot in your hospital room.
But you should do a thorough review of the incident and find out who was involved. More people could be involved than you think, including:
- Nurses
- Surgeons
- Anesthesiologists
- Specialists
- Pharmacists
- Technicians
- Other hospital employees
- Medical equipment manufacturers
- Pharmaceutical companies
- Dentists
What To Do If You Experience Malpractice Or Negligence
It’s helpful to understand negligence and malpractice should it ever happen to you. Knowing the difference between malpractice vs negligence is important as well.
But what’s the most important step to take when you believe your doctor failed you? Getting qualified legal representation. At Hampton & King, we specialize in medical malpractice–even complex cases. We often take on cases that other firms decline.
If you’re wondering whether your case qualifies as malpractice or negligence, give us a call. We’re available 24/7 to speak with you. You then schedule an initial consultation with a lawyer at no cost to you. Let us put our 60+ years of experience to work getting justice for you!
