In this episode, John Maher talks with Calder Mellino, partner at Mellino Law Firm, about the difference between negligence and malpractice. Calder explains how, under Ohio law, the terms are synonymous and outlines the standard of care expected from medical professionals. He also discusses examples of negligence, such as performing incorrect surgeries or prescribing medications improperly. Calder highlights the importance of expert testimony, reviewing medical guidelines, and hospital procedures when proving malpractice. He encourages patients and families to act quickly if they suspect negligence and seek legal help to review medical records and build a case.
John Maher: Hi, I am John Maher and I'm here today with Calder Mellino, a partner with the Mellino Law Firm, a personal injury law firm in Cleveland, Ohio with a focus on medical malpractice. The Mellino Law Firm has over 40 years of experience in handling medical malpractice cases, has been involved in several landmark cases in Ohio and has received verdicts against every hospital system in Cleveland. Today we're talking about negligence versus malpractice. Welcome, Calder.
Calder Mellino: Thanks for having me.
What is the Difference Between Negligence and Malpractice?
Maher: Sure. So Calder, tell us a little bit about what the difference is between negligence and malpractice.
Mellino: Yeah, sure. So that's a very good question, and the short answer is there is no difference, but it's a really good question. This is something we see in every single case and every single trial when we're talking to jurors. We ask them this question, what do you think the difference is between negligence and malpractice? Because there's this common misconception that malpractice is something more or this higher level than negligence, and that's just not the case.
There is no distinction under Ohio law between negligence and malpractice. Negligence is the failure to do what a reasonably careful person would do in the same or similar circumstances, and that's the same for malpractice. They are synonyms here in Ohio.
Is There a Different Standard of Care for a Medical Professional?
Maher: That makes sense. Is the standard of care, though, different for a medical professional as compared to a layperson?
Mellino: Sure. The medical professionals held to the same standard of care that any of us, you and I, are held to in our jobs, which, again, is what a reasonably careful person would do under the same or similar circumstances. There's no exceptions or higher level of proof for medical professionals as there is for anyone else doing their job. They all need to be reasonably careful and follow the policies and procedures that are put in place and do what's safe and be careful in our jobs. And same is true for medical professions.
Examples of Standard of Care
Maher: So just because they're a medical professional doesn't mean you're, again, held to a higher level because everybody should be held to the highest level of standard in terms of making sure that their employees or the people that they're working with are safe. So, if somebody's working in a company that is manufacturing company, say, with dangerous equipment, you need to be doing your utmost to make sure that your employees are safe in that case. And in a medical situation at a hospital, instead of it's being your employees, it's your patients, those people. But in both cases, you're held to that high level of standard where you're just trying to make sure that everybody is safe and you're following all of the proper procedures.
Mellino: That's absolutely right.
How Can a Medical Professional be Held Liable for Negligence?
Maher: Okay, so talk a little bit about how a medical professional can be held liable for negligence, even if they didn't intend to harm somebody. Obviously doctors, for the most part, we hope, are trying to do their best to heal patients and make them better and not make them worse or do them harm. So how can they be held liable for negligence in a case like that?
Mellino: Yeah, so again, that's a great question. We talk to jurors in every case, and that's because there is no requirement that for intent that they meant to do it. Law, we use a fancy term, mens rea. There is no mens rea for negligence. It doesn't need to be that they meant to do this or they intend to do this. It doesn't even need to be that they were reckless in doing this. In fact, if you're reckless, that's worse. And that could be punitive damages and even further damages. Again, the test is just whether they were reasonably careful, whether they meant to do it or not. In fact, in many of our cases, they did not intend to do it. And of course, no one's out there looking to cause harm to patients or to injure them, and that's not what the question is here.
Examples of Negligence that Leads to a Medical Malpractice Suit
Maher: Can you give me some examples of negligence that could lead to a medical malpractice lawsuit?
Mellino: Sure, absolutely. And one of the things I caution is sometimes people are like, “Well, it's not this specific name or it's not on this list.” You hear a lot of stuff about doing the entirely wrong surgery, and that's certainly obviously negligence, but it could be doing the surgery that you intended, but not being careful during that surgery and not performing that surgery to the standard of care. Same thing, you'll hear a lot about getting the entirely wrong medication, and that's certainly negligence, but it could be prescribing the correct medication but at the wrong dosage or with another medication that it counteracts with and causes harm.
Or it could be failing to monitor the patient while they're in the hospital or in the nursing home or in the assisted living or failing to check up on the patient or have them come back in or follow up on testing. These are a lot of the cases we see where doctors just aren't being careful and it's causing harm to the patients.
When Should a Patient or Family Member Think About a Medical Malpractice or Negligence Case?
Maher: So, at what point should a patient or maybe a family member of a patient start thinking, “Hey, this patient was I or my loved one was injured, and I think that something's not right here. This might be a medical malpractice or a negligence case.” How do they go about figuring out whether or not they might have a case?
Mellino: Yeah, whenever you have an outcome that's unexpected and you have some harm, you have some injury. One, you went in to get better and you're getting worse, or you went in for this surgery and you didn't expect this outcome at all, that's when you should start consider talking to a law firm, talking to a lawyer, because they're going to have that case and we're going to have that case reviewed by an expert in the field who's going to look at what happened, look at what was documented and look at what was done, look what was not done to see whether or not this care here met the standard of care or whether this was a breach in the standard of care.
How to Prove Negligence
Maher: And so how do you then go about proving that there was negligence in a medical malpractice case?
Mellino: Yeah, so there's a lot of different ways that we prove negligence. First of all, for any medical negligence case in Ohio, you're going to have to have an expert testify as to what the standard of care is in the care that happened here. So, whether that's a specialty like a cardiologist or oncologist, or whether that's even just your general practitioner, your primary care physician, you're going to have an expert come in and explain to the jury what the standard of care is and then look at the care here, review the records and say whether the care here met that standard of care or didn't and was a breach.
But we'll also look at some other good sources for what the standard of care was to then look at whether or not it was met. For instance, in every case, we get the policies and procedures of that hospital or that facility to look at, whether or not they were following the policies and procedures. And if not, why not? We got to figure that out. Was there adequate staffing? Did someone call off that day that was supposed to come in?
And in addition to the policies, we'll look at nationally published guidelines. There's the American Medical Association, there's different professional organizations for each specialty, like the American Heart Association, and they publish guidelines that are for all of their members and practitioners in that specialty to follow. And we'll look at whether or not those are being followed in this case. And those guidelines come from medical literature, from medical studies where they're looking at clinical studies and finding what works and what doesn't work and reporting that.
And so again, we'll look at the medical literature too in those studies. We'll say, “Well, we found, according to the science, according to these studies, here's what works. Were you doing that in this case? If so, why not?” So, we'll put all those things, present all those to the jury for their decision as to whether or not there was medical negligence.
Internal Procedures vs Best Practices
Maher: So, you could have a case where the hospital was actually following all of their own internal procedures, but the hospital itself maybe was not up to date with what the latest information was or didn't have the latest data, but when they should have?
Mellino: Yes, yes, we will see that and you can see when the policy was last updated, maybe it hasn't been updated in 5, 10 years. We'll say, “Who last checked it off and why haven't they looked at it again recently? Are they aware of these studies since then that say something different than their policy?”
What to do If You Suspect Malpractice?
Maher: So, what should a person do if they do suspect, again, that they did have either for themselves or for a loved one that there was medical malpractice that happened? What's their first step?
Mellino: Yeah, the first step is going to be to both reach out to a law firm and to start looking at their medical records. Especially today with MyChart and online access, a lot of times patients can come in with already having some of the records and that can help expedite the process and get it going. Now, you can't get everything through MyChart, and obviously you're not going to get things like policies and procedures. That's why it's important to talk to a lawyer as soon as possible so we can start collecting all of this.
Maher: All right, well that's really great information, Calder. Thanks again for speaking with me today.
Mellino: Absolutely. Thanks again for having me.
Information About Mellino Law Firm
Maher: And for more information, you can visit the Mellino Law Firm website at mellinolaw.com or call (440) 333-3800.