The Difference Between Medical Negligence & Medical Malpractice
Miley Legal Group
We put our trust in doctors, nurses, surgeons, pharmacists, and other healthcare workers to protect and promote our health. Their mistakes and failures are not only financially costly, but sometimes mean the difference between life and death, or between living a healthy life or suffering from a permanent disability.
Sometimes, workers in a healthcare setting make careless mistakes or fail to perform their jobs with reasonable care, resulting in harm to patients. Sometimes, licensed medical experts fail to provide their patients with the required medical standard of care, resulting in harm.
These two competing modes of patient injury reflect the subtle difference between medical negligence and medical malpractice. Let’s take a closer look.
Overview of Medical Negligence
The term “medical negligence” is often used interchangeably with the term “medical malpractice”, but they are distinct, albeit overlapping and nuanced, concepts in personal injury cases.
Broadly speaking, negligence refers to a failure to fulfill a reasonable duty of care not to harm others. We say a driver is negligent if he speeds or blows through stop lights. Negligence happens when someone does, or does not do, something that puts someone else at risk of harm.
In a medical setting, negligence claims can constitute a wide variety of careless or reckless actions, or failures to act, that cause harm to patients. It can include, for example:
- Mistakes in performing basic procedures, such as inserting an IV line or moving a patient from one bed to another;
- Careless medical errors in taking or transcribing patient health histories; or
- Failing to attend to attend to potentially dangerous conditions in a medical facility that could harm patients.
In essence, medical negligence is anything a healthcare worker, provider, or institution does, or does not do, that puts a patient at an unreasonable risk of harm.
Overview of Medical Malpractice
Medical malpractice is a type of negligence. In other words, virtually all acts of malpractice constitute negligence, but not all instances of negligence amount to malpractice.
First and foremost, malpractice refers to the wrongful actions of a licensed professional. We speak of legal malpractice, accounting malpractice, architectural malpractice, and medical malpractice, but not restaurant server malpractice, motivational speaker malpractice, or grocery clerk malpractice.
Professionals have special duties to uphold and abide by the standards of their professions. The duty owed by doctors and other licensed healthcare providers consists of the standard of care, which stands for the quality of medical care that a reasonable, qualified provider would deliver in a particular health setting.
The standard of care can vary from location-to-location and specialty-to-specialty. For example, the standard of care owed to a patient experiencing a heart attack may be different for a cardiac surgeon at a university health center than for a family medicine practitioner in a small town.
In a nutshell, medical malpractice constitutes a licensed medical professional’s failure to meet the standard of care in treating a patient.
The vast majority of cases of malpractice constitute negligence, because on the whole, doctors and other licensed medical providers want and try to deliver standard-of-care-level treatment to their patient. That is, they do not intend to do their patients harm, but instead make careless or reckless mistakes that result in the patient receiving substandard care.
Some examples of medical malpractice may include:
- A surgical team skipping steps in the sterilization process resulting in infection or death;
- A nurse failing to review a patient’s medical records before administering a medication that leads to a dangerous allergic reaction;
- A doctor failing to perform obvious diagnostic tests, resulting in a misdiagnosis of a deadly disease;
- A surgeon performing an unnecessary surgery, or operating on the wrong body party; or
- A doctor prematurely discharging a sick patient from a hospital.
In short, for medical negligence to amount to medical malpractice, the wrongful action (or inaction) must have been committed by a licensed healthcare professional in the context of providing medical care, and must reflect a failure to live up to the medical standard of care for the doctor’s and patient’s particular circumstances.
Never Events In Medical Settings
As we said, it’s a subtle difference, and even lawyers and judges may sometimes struggle to differentiate them. However, some incidents that happen in a healthcare setting, known as “never events”, virtually always constitute medical misconduct and constitute grounds for a medical malpractice suit, no matter what you call it.
The concept of a never event has been floating around hospitals since 2001, after a notable physician used the term to describe horrifying practices that should NEVER happen in a medical setting.
The definition of a never event has evolved over the years. Today these types of cases generally comprise 29 serious events, split into seven groups, that lead to serious injury or death in patients:
- Surgical events include wrong person, wrong site, or wrong procedure surgeries, leaving foreign objects in the body, and improper anesthesia.
- Product and device events include contaminated medical devices or drugs or the improper use of medical equipment.
- Patient protection events include the release of a patient too early, patient suicides, and other self-harm in a medical facility.
- Care management events are the most common never events and include medication errors, improper blood transfusions, artificial insemination of the wrong egg or sperm, and bedsores.
- Environmental never events include patient harm from electric shocks, mix-ups in oxygen and gas lines, toxic chemical exposure, chemical burns from medical treatment, and injury from the improper use of bed restraints or bed rails.
- Radiologic events refer to the rare occasion that a doctor, patient, or other medical professional brings metal into an MRI area.
- Criminal events might be the most egregious of all malpractice and include the intentional harm or neglect of a patient. Examples include impersonating a doctor, abducting a patient, patient abuse, and assault and battery in a medical setting.
Never events are referred to as such because they are not supposed to happen in a medical facility. When they occur, chances are a medical provider made a serious mistake that entitles the patient to compensation.
Never events happen more often than you might expect. One study estimates every hospital in the United States performs an improper surgery or procedure on a patient approximately once every five to ten years. Another study estimates that more than 4,000 surgical never events occur each year in hospitals across the United States.
When to Take Action on a Medical Malpractice Claim
If you’ve suffered injury or harm at the hands of a medical professional, you may be eligible for compensation through a settlement or a medical malpractice lawsuit. You do not deserve to be left on your own to deal with insurance companies, expensive medical bills, and the pain and suffering from your injuries.
The fact is whether a law firm would classify the medical mistakes and breach of duty that led to your injury as negligence or malpractice, you have a potential claim for damages. Medical negligence cases and medical malpractice cases both call for the help of a personal injury attorney.
To obtain compensation you deserve, seek the services and legal advice of an experienced medical malpractice attorney.
The skilled medical malpractice lawyers at Miley Legal Group can help you hold the medical professionals who caused you harm liable for their action or inaction. Contact us today online or at 304-745-2636 for a free consultation to discuss your claim.