What Is the Difference Between Malpractice and Negligence?

What Is the Difference Between Malpractice and Negligence?

The number of negligent injuries due to medical errors is a growing concern for the medical community, the insurance industry, and the general public. The incidents of medical malpractice and medical negligence are difficult to measure with any substantial degree of scientific accuracy—and when they cannot be measured, they cannot be managed.

Preventable medical errors continue to pose a serious threat to patient safety. A paper published by the National Institutes of Health reinforces the extent of the problem, stating, “Approximately 400,000 hospitalized patients experience some type of preventable harm each year.”

Learn more about medical negligence and malpractice in regards to personal injury law from our experienced medical malpractice attorneys.

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Preventable Harm

When it comes to healthcare, errors in judgment, skill, or coordination of patient care often have life-changing and sometimes life-ending consequences. Preventable harm in a medical setting is a complex and controversial issue, both from a legal and economic standpoint—and preventable harm is almost always compensable. Because of the lack of standardized nomenclature, lawyers often use negligence and malpractice interchangeably. In the pursuit of a personal injury claim, the law defines them differently.

The Distinction Between Negligence And Malpractice

A personal injury attorney can help a client understand the difference between the two and how a case may proceed differently depending on the particular circumstances.

Negligence

Negligence is a failure to exercise the care that a reasonably prudent person would use in similar circumstances. Negligence is not intentional; rather, it is the result of carelessness.

Malpractice

Malpractice is also known as professional negligence. To be held liable for a medical malpractice claim, the negligent party must be a licensed professional caregiver whose failure to provide services following the prevailing standards of care of their profession causes harm to the patient.

Negligence is a general term—anyone, including non-medical persons, can be liable for negligence. Malpractice is more specific in that the person committing the wrong must be a professional. 

The Basics Are Similar

Negligence is a recurring factor in personal injury claims, and negligence is a malpractice component. Although both negligence and malpractice involve a breach of duty, predictable consequences, an action (or a lack of action) causing injury or death, and damages, without a conclusive connection between negligence and injury, there is no case for malpractice.

So, why do mistakes occur?

Everyone makes mistakes, and healthcare providers are no exception. Some mistakes result from a lapse in attention or an error in judgment. Some may result from insufficient data, an unavoidable distraction, or environmental issues or conditions. Although preventable medical errors can be compensable, not all damages caused by medical treatment are preventable or avoidable. Medicine is not always a predictable science, and all medical treatments and procedures hold a degree of risk.

Despite strict adherence to policies, protocols, and acceptable guidelines, some treatments are ineffective, some side effects are unexpected, and sometimes a patient dies sooner than anticipated.

Some of the causes of preventable medical errors (negligence or malpractice) include:

• A breakdown in communication
• Ineffective policies and procedures
• Poor documentation
• Staffing issues
• Fatigue
• Insufficient supervision

The Standards of Care

Defining a standard of care is case-specific and often hinges on the particular specialty of the provider, current advances in new technology, and sometimes on the geographic location where the care is rendered. In addressing the definition of medical standards of care, the AMA Journal Of Ethics states:

“It is a duty determined by a given set of circumstances that present in a particular patient, with a specific condition, at a definite time and place.”

Preventable Medical Mistakes Are Underreported

The American Patient Rights Association calls preventable medical mistakes a hidden epidemic. These are harsh words—but words that need to be said. Most errors and safety issues go undetected and unreported. There is no place on a death certificate to record a preventable medical error as a contributing cause of death. There is no standardized way to document critical scenarios such as a communication problem, a diagnostic error, or poor judgment.

The truth is medical mistakes are underreported, and as a result, the public does not fully understand the impact of medical errors. Consumers need current and accurate data to help decide where and from whom to seek healthcare. Without a reliable reporting system, there may be no end to reducing the number of adverse events.

If medical error were a disease, it would rank as the third leading cause of death in the US.

How and Why Preventable Medical Mistakes Happen

An error is an unintentional deviation from safe practice. Preventable medical errors can happen during any phase of the patient-healthcare provider relationship.

Some of the types of preventable errors include:

• Diagnostic errors
• Treatment errors
• Administrative errors
• Care and case management errors
• Surgical errors

Common Preventable Medical Errors

Failure to obtain informed consent

Before treating a patient, a physician must fully explain the proposed treatment plan or procedure in terms the patient can understand. The patient must be informed of any potential risks, including the risks associated with a refusal of treatment. It should also be thoroughly explained to the patient if alternative treatments exist. Obtaining informed consent is a patient’s legal right.

Childbirth Injury

Some medical errors during childbirth and postpartum can result in lifelong disabilities for the infant and sometimes death for the mother.

Examples include:

• Inadequate prenatal care
• A failure to diagnose complications
• Incorrectly using forceps or other assistive devices
• Performing an unnecessary C-section
• Failing to perform, or a delay in performing a C-section
• Failing to monitor the baby and mother during labor

Missed diagnosis

An incorrect diagnosis can have devastating and sometimes deadly results for a patient. Unnecessary treatments may exacerbate the actual condition. A missed diagnosis A misdiagnosis may result in additional complications, as well as painful and expensive ineffective procedures. Some of the most commonly missed diagnoses include colorectal cancer, lung cancer, breast cancer, heart attack, stroke, sepsis, and pulmonary embolism.

Delayed diagnosis

A delay in a timely diagnosis means a delay in beginning necessary and often life-saving treatment. Delayed treatment can be as deadly as a missed diagnosis.

Medication errors

The wrong drug or the wrong dose can result in a bad reaction. Medication errors often happen because of a lack of communication within a patient’s healthcare team. When physicians do not communicate with each other, there is a potential for dangerous drug interactions.

Another possible reason is that the names of medications, as well as the color and shape of medications, often look and sound alike. While this is an understandable problem, it is not acceptable. Additional reasons for preventable medication mistakes include a lack of a patient’s complete medical history and transcription errors.

Hospital-acquired infection

A lack of proper sterilization and disinfecting policies and procedures can often lead to dangerous and fatal infections. According to a Centers for Disease Control publication, “On any given day, about 1 in 31 hospital patients has at least one healthcare-associated infection.” Additionally, an article in Time reports that 69 percent of hospital-acquired infections can be prevented, 

Surgical errors

Examples of surgical errors that can lead to a case for medical malpractice include:

• Unnecessary or inappropriate surgeries
• Anesthesia errors
• Cutting an organ or another part of the body by mistake
• Instruments and other surgical debris left inside patients
• Operating on the wrong body part
• Operating on the wrong patient
• Pre- or postoperative mistakes, such as failure to address complications resulting from surgery

Lack of follow-up care

If, after undergoing surgery or receiving medical treatment, patients have suffered health complications but are not provided adequate follow-up care, they may have grounds for a medical malpractice claim. 

While not an exhaustive list, the following actions or omissions may contribute to preventable medical errors:

• Illegible handwriting on medical charts or diagnostic test orders

• Failure to recognize clinical signs and symptoms
• A failure to order appropriate medical tests
• Too many blood transfusions
• Failure to refer a patient to the appropriate specialist
• Releasing a patient too early from the hospital
• Language barriers between patients and medical providers
• Inaccurate documentation,
• Failure to order necessary diagnostic tests
• Use of outdated technology
• Delay in responding to an abnormal test
• Procedural errors
• Failure to provide prophylactic treatment
• Undue exposure to radiation
• Poor oxygen control
• Errors during childbirth
• Failure of medical devices
• Lack of patient supervision
• Blood clots
• Airway safety issues
• Patients harmed during a fall
• Diagnostic test mixups

The Filing Restrictions, Regulations, and Financial Awards

The law provides a mechanism for patients to seek compensation for medical negligence that resulted in preventable harm. Each state has specific restrictions and regulations for initiating legal action against a healthcare provider or entity. Medical negligence and malpractice are complex areas of personal injury law. Families facing the aftermath of healthcare gone bad are best served by seeking counsel from a knowledgeable and experienced attorney.

Damages In Negligence and Malpractice Cases

Victims of medical negligence or medical malpractice may be able to receive financial compensation for:

• The costs associated with medical care, future healthcare needs, and any medically necessary medical equipment

• Compensation for lost wages and lost benefits
• Compensation for lost earning capacity
• Mental distress
• Pain and suffering

Do Physicians Have a Duty to Disclose Medical Mistakes

Much like the relationship forged between a lawyer and a client, a doctor-patient relationship should be based on open, honest communication. At the very least, healthcare providers have an ethical duty to disclose mistakes made during patient care.

The American Medical Association’s journal of medical ethics states, “It is a fundamental ethical requirement that a physician should at all times deal honestly and openly with patients. Patients have a right to know their past and present medical status and to be free of any mistaken beliefs concerning their conditions.”

Patients should have a right to expect the healthcare provider is acting in their best interests at all times.

Dealing With the Magnitude of Preventable Medical Errors

Scientific American states most people in the United States will experience at least one misdiagnosis or delayed diagnosis in their lifetimes. Patients and their families often do not realize that sometimes preventable medical errors rise to the level of malpractice. Patients have a right to know if what happened to them was a preventable error. Even a single life lost to a preventable medical is tragic. Mitigating or reducing the risk of preventable medical mistakes continues to be a high priority for medical community members. Even though doctors take the oath of “do no harm” seriously—human errors represent a significant number of preventable mistakes in healthcare every day across the nation.

A Skilled Legal Advocate Can Make A Significant Difference

Technically, having an attorney handle medical malpractice or negligence claims is not a requirement in seeking compensation for damages, but having an experienced malpractice attorney can:

• Handle all the interactions with the doctor’s or hospital’s insurance carriers

• Represent the injured patient in settlement negotiations
• Deal with the required documents
• File necessary motions
• Secure evidence
• Seek out and interview potential witnesses
• Arrange for expert medical testimony
• Meeting court deadlines.
• Deposing witnesses.
• Manage any deadlines
• Help a family determine the full financial value of losses
• Act as a support system

Victims of harm caused by medical negligence have already paid a high price—it does not cost anything to call a lawyer. If you suspect that a doctor or other healthcare provider caused an unexpected injury or complications of your illness because of bad judgment, you have a legal right to know the truth. Contact a personal injury attorney today if your family is facing the ramifications of a medical provider’s possible negligent decisions or actions.

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