Medical Malpractice vs. Negligence: Is There a Difference? March 30, 2023.
What Is Medical Malpractice?
Medical malpractice is a legal term for an act or failure to act by a medical professional that results in injury or death to a patient. Medical malpractice differs from ordinary negligence because medical professionals are held to a higher standard of care due to their relationship with patients.
Medical professionals are also supposed to be aware of the potential their actions have for harm. An act that might be negligent if carried out by an ordinary person has the potential to be malpractice if done by a doctor.
Because a lawsuit against a doctor involves understanding the difference between malpractice and negligence, you should speak with an attorney before attempting any legal action.
Examples of Malpractice
Malpractice contains an element of intent or reckless disregard. It also is behavior that deviates from the accepted norms of medical practice. Some examples of malpractice might include:
- Misreading, ignoring, or disregarding medical tests. A test might indicate the patient has diabetes, but the doctor might disregard the test because they feel the patient just needs to lose some weight.
- Surgical errors. Unnecessary surgery, surgical procedures on the wrong organ or in the wrong location, and leaving instruments inside a patient’s body are all serious and avoidable errors that result from malpractice.
- Misdiagnoses of medical conditions. Not all missed diagnoses are malpractice. However, if a patient is harmed because a doctor consistently fails to notice their condition is worsening — or if another doctor would have diagnosed the illness with the same facts — it becomes malpractice.
- Intentional malpractice. Doctors who deliberately fail to order tests or overbill patients commit malpractice as well as other types of fraud.
Whenever a patient is injured by the negligent actions of medical personnel and it could have been avoided, it may have been malpractice.
Proving Medical Malpractice Claims
Proving medical malpractice involves showing that the medical professional acted outside the established norms of care. Doctors and other medical professionals have a heightened standard of care for their patients, and this breach must be established to prove a claim. This is sometimes called the Four D’s:
- Duty of care is established by the relationship the doctor has with the patient.
- Deviation from the standard of care arises when comparing it with what another doctor would have done under similar circumstances. Expert testimony may be used in court to establish this deviation.
- Direct cause between the deviation and the injury. Records may be used to show how the failure to diagnose a condition promptly led to the patient’s chronic illness.
- Damages are required before filing any malpractice claim. The damages must be caused by the malpractice itself.
Proving medical malpractice can be difficult because there is also a time limit, known as the statute of limitations. In Ohio, the statute of limitations is only one year from the date of injury, or the date when the plaintiff (you) should reasonably have discovered the cause of the injury or illness.
The statute can be extended by a “statute of repose,” which gives the plaintiff an additional four years to file their claim under certain conditions. You should contact an attorney at once if you believe you have a medical malpractice suit and think that time may be running out.
What Is Medical Negligence?
Medical negligence is medical care that falls below the accepted level of care without causing serious injury or death. Medical negligence lacks the element of knowledge or reckless disregard that typifies malpractice.
For instance, if a doctor intentionally failed to order a test because they could not bill Medicare for it and missed a critical diagnosis, that would be malpractice. If a doctor failed to order a critical test because the office was extremely busy that day and they forgot, that would be negligence.
In both cases, the doctor fell below the accepted standard of care. But the reason for the failure was different.
Examples of Negligence
Negligence is common in situations where medications or devices have similar names or can be confused with one another without careful instructions. Examples include:
- Incorrect medications or prescriptions. Mistakenly writing the wrong number in a dosage or the wrong brand name of a drug can have deadly consequences.
- Surgical mistakes. Surgery can be hectic, especially if something goes wrong. Blood vessels can be punctured by sharp instruments in an emergency. Small items like surgical sponges can also be left in the body by mistake.
- Misdiagnoses. Sometimes illnesses aren’t easy to spot. You may describe chest pains, but they sound like heartburn. Your doctor may treat you in good faith, but that doesn’t relieve them of responsibility if you become seriously ill later.
Proving Medical Negligence Claims
The law understands that sometimes mistakes happen without malice. But that does not relieve professionals of liability. Proving medical negligence is no different from proving any other negligence, with the understanding that medical professionals are held to a higher standard than others. Evidence of negligence is the same as evidence of malpractice.
To prove medical negligence, you need to show that the doctor or other medical professional did not adhere to medical standards and this was the cause of your injuries. You will need to show the treatment or lack of treatment was below that of other healthcare providers.
The Defining Differences in a Nutshell
The main defining difference between malpractice and negligence is evidence of a deliberate or reckless breach of duty, and an accidental one.
Our Medical Malpractice Attorneys Can Help You Take Legal Action
You should never attempt a medical malpractice case on your own. You want the best possible legal assistance you can find. Mellino Law has been handling medical malpractice cases throughout Ohio for more than 40 years, and we understand how to fight and win these cases.
If you believe you have a medical malpractice or negligence case, you have a limited amount of time to file your claim. Contact our firm for a free consultation. We’ll review your case and give you our honest opinion about the facts and your next steps. Call us today.