When It Comes to Negligence vs. Malpractice, Intent Is the Difference

June 22, 2021 Insights

After being injured as a result of a medical error, you are likely to encounter two frequently conflated terms, “negligence” and “malpractice.” While they may sound the same, your lawyer should most certainly know the difference.

It is estimated that nearly 150,000 payouts were made for medical errors in the U.S. between 2006 and 2016, with about 61,000 practitioners seeking reinstatement following disciplinary action. Additional studies show between 250,000 and 440,000 Americans die every year due to medical errors, making it the third-leading cause of death

A 2013 paper published in the Journal of Patient Safety, which suggested a staggering “low end” of 210,000 deaths a year, identified the most common malpractice and neglect situations. These included errors of commission‚ such as a wrong action that harmed a patient, or a medically warranted action that was performed carelessly enough to cause harm. For example, an improperly prescribed medication that caused severe anaphylaxis, or a wound that was sewn up so hastily the stitches came loose, and it became infected.

In errors of communication, information between two or more providers is not properly exchanged, with harm then being caused by unreliable or inaccurate information. In errors of context, a provider fails to take the patient’s unique conditions or constraints into account when providing treatment, such as by prescribing a contraindicated drug that reacts dangerously with one a patient is already taking. 

While all the above can cause serious physical and even psychological harm – as well as death – they can also fall under both negligence and malpractice, depending on the circumstances. So, if the type of incident isn’t the demarcating line, what is?

As in negligent security cases, medical negligence and malpractice pivot around the presumption of a “duty of care.” In this case, one that a provider has towards their patient. Here, too, the principle of foreseeability applies, where the type of harm the negligence or malpractice victim suffered is considered by a court as to whether it had been predictable by a reasonable person in a similar situation. 

In malpractice, the provider breaches their duty of care with intent: They knew they should have done or not done something, yet they proceeded anyway despite an obvious risk of harm. A few examples are a surgeon who performs a medically unnecessary operation, or a doctor running unnecessary diagnostic tests to bill an insurance company for additional money.

Negligence is closer to a mistake, akin to when a driver gets distracted on the road and runs a red light. They involve neither intent nor knowledge, such as when a surgical tool is mistakenly left inside of a patient following surgery, or when failure to properly assess a patient’s symptoms results in insufficient treatment.

While medical malpractice cases must involve an injury, this is not necessarily true of medical negligence, which merely requires behaviors or actions on the part of the provider that had a reasonable risk of causing harm. Medical negligence can also involve a failure to prevent a patient’s injury, such as when a hospital does not properly maintain its premises or does not have or follow protocols to prevent falls or infections.

Because every situation is different, it’s important to work with an experienced medical negligence and malpractice attorney who can advise you on your case and develop a winning legal strategy. If you’ve suffered at the hands of a clinician or provider error, the team at Circeo Law Firm is here to help.