Langer & Langer Recent Posts

What Is the Difference Between Negligence and Malpractice?

On Behalf of | Mar 21, 2022 | Medical Malpractice

Medical malpractice occurs when a hospital, physician, or other health care professional causes harm or injury to a patient. Typically, harm or injury is linked to negligent actions of a medical professional or a medical facility. Negligent actions that constitute legal action include a variety of problems such as misdiagnosis, diagnostic errors, surgical errors, medication errors, improper treatments, and lack of follow-up care.

What Is Medical Malpractice?

Medical malpractice occurs when a hospital, physician, or other healthcare provider violates an established standard of care. Medical professionals take an oath to protect their patients from harm while patients are under their care. Patients trust their doctors to provide proper medical care and treatments for health conditions that may cause illness, disease, and injury.

Medical malpractice is a civil legal cause of action that can be pursued by a patient who suffers harm caused by negligent acts or omissions of a medical professional. The injured patient is entitled to file a medical malpractice lawsuit with a medical malpractice lawyer to recover compensation for damages. To recover compensation, a medical malpractice lawsuit requires proof of the following conditions:

An Existing Relationship Between the Physician and the Patient

A patient/physician relationship must be established during the time of the patient’s injury. A patient can not file a medical malpractice claim against a physician or other medical professional who did not treat the patient directly. Proving patient/physician relationships can become complicated because many patients see multiple physicians and specialists during the course of their medical care. A medical malpractice lawyer is essential to gather medical reports and documented evidence to prove the case.

The Medical Provider Violated the Standard of Care

Just because an illness or injury occurs during the course of medical care, this does not prove that negligent actions or physician misconduct occurred. The patient must show that the medical provider acted in a way that a reasonable and competent medical provider would not have done under the same or similar circumstances.

The Medical Provider’s Negligence or Misconduct Caused Patient Injuries

Since patients who seek medical care are usually already suffering from an illness, disease, or injury, proving physician liability for injury or death can be difficult. For instance, if a patient seeks medical treatment for an existing health problem, and the patient later dies, it may be difficult to link the patient’s death to the medical provider’s actions, even if the physician was negligent in some way.

The Patient Sustained Damages

To have a valid medical malpractice claim, the patient must prove that he or she sustained damages as a result of his or her injuries. Patients who suffer health complications or injuries caused by a medical provider’s negligence or misconduct can file a claim to recover damages for physical injuries, emotional distress, disabilities, pain and suffering, lost wages, and any additional medical expenses that result from a medical provider’s negligence or misconduct.

Medical malpractice can take many forms. Here are some examples of medical actions that lead to medical malpractice lawsuits:

  • Failure to diagnose or misdiagnosis of a health condition
  • Misreading or ignoring laboratory results
  • Surgical errors or performing unnecessary surgeries
  • Prescribing improper medications and doses
  • Failure to order proper medical testing
  • Lack of patient follow-up care

To establish a breach of care, a medical malpractice lawyer must state how the medical professional’s or medical facility’s actions violated an accepted medical standard of care.

To better understand the facts about medical malpractice, it is best to talk to an experienced medical malpractice lawyer who handles these types of cases. Before filing a medical malpractice lawsuit against a medical professional or institution, it is important to understand what is the difference between negligence and malpractice. Although actions that constitute both are very similar, there are some basic differences that impact claims.

What Is Negligence?

According to law, the term “negligence” refers to the failure of a person or entity to exercise a level of care necessary to protect other individuals. Negligence can apply to actions that cause physical harm, emotional harm, and financial harm. Typically, negligence comes into play to address a person’s or entity’s actions or failure to act when there is a required duty. Negligence often applies to personal injuries from car accidents and slip and fall accidents, as well as medical injuries, so it is important to know what is the difference between negligence and malpractice.

Medical negligence includes the same four elements described in medical malpractice, but with a few qualifying factors. To sue for medical negligence, the person being sued must be a qualified medical professional such as a physician, nurse, surgeon, EMT, dentist, or other health care worker or a medical institution such as a hospital, urgent care facility, or nursing home facility, or clinic.

To determine negligence, there are certain factors to consider. (1) Did the person’s acts or omissions lack the degree of care that would be taken by any reasonable person in the same situation? (2) Was there a predictable likelihood that the person’s conduct could result in harm? In addition, there are elements of negligence that must be proved to file a legal claim. If the plaintiff fails to prove any one of the following elements, he or she will lose the entire claim:

Breach of Duty

After establishing that the defendant in a case had a duty to protect the plaintiff, proof must also be shown that the defendant breached that duty. Typically, this happens when a defendant knowingly exposes another person to a risk of harm or injury, or when the defendant fails to recognize a significant risk of harm or injury that any other reasonable person would have recognized under the same conditions.


In order for a person to be held liable for negligence, the proof is required to show that the person’s act or failure to act caused the plaintiff’s loss or injury. Causation may be difficult to prove because the defendant’s actions can be a direct cause or an indirect cause of the injuries and damages. This is especially true in cases that involve multiple defendants. When determining causation, courts also look at “proximate cause” to consider what is fair, and at what point does it become unfair or unreasonable to hold a person liable for the results of his actions.


Once a breach of duty and causation has been established, the court must determine a monetary value for the plaintiff’s injuries or damages. In civil lawsuits, the monetary reward is intended to make the plaintiff whole or to return him or her to the previous position before the negligent actions occurred. To accomplish this, all damages must be provided to the court in the form of receipts, canceled checks, or other written, documented evidence. In most negligence cases, the court will award monetary compensation to cover medical costs, property damages, and pain and suffering.

Comparing Medical Malpractice and Negligence Cases

What is the difference between negligence and malpractice? Despite the fact that medical malpractice and negligence terms are often used interchangeably, they always have clear differences. Medical malpractice is always one of the crucial components of medical negligence, but there are slight differences between the two. Medical malpractice is considered to be a violation of professional ethics and discipline doctrines, while medical negligence is considered to be more related to the actions that cause patient harm or injury. Between the two, medical malpractice cases usually involve more serious injuries, as well as more serious legal consequences. When recovering damages for medical malpractice, the court usually awards greater compensation for damages.

When looking at what is the difference between negligence and malpractice cases, the issue of malpractice vs. negligence is key because both invite different elements that must be proven. The key difference between the two types of actions is the presence of intent. In medical malpractice cases, the injured patient must prove that his or her doctor knew or should have known that his or her actions would result in harm, leading to a breach of standard care. In negligence cases, the injured party must only prove an unintended act or omission, using the malpractice definition of ‘intent.”

Claiming Medical Malpractice or Negligence?

Determining whether a potential case is a malpractice case or a negligence case should be left to a knowledgeable, experienced lawyer who handles cases within the field of healthcare litigation. The right lawyer will review the key facts of the case, determine whether the case involves malpractice or negligence actions, and litigate the case to hold the responsible party or parties liable for their actions.

Medical malpractice and negligence cases begin with a patient or a patient’s family (if the patient dies) seeking a lawyer to determine if they have a valid case. Once the lawyer takes the case, a pretrial period begins which usually lasts for several months. During this phase, the plaintiff’s lawyers and the defendant’s lawyers will go through a discovery period of sharing information from medical records, medical experts, and depositions with the patient, doctor, and anyone else involved.

Medical professionals and medical facilities are usually represented by lawyers appointed by an insurance company that is providing medical malpractice coverage. The time frame of the case will usually last months, or even years, depending on the severity of the patient’s injuries, the circumstances involving malpractice or negligence, and whether the case goes to court or settles out of court.

According to medical statistics, more than 80% of medical malpractice and negligence cases end in a settlement and never proceed to a court trial. The reason is related to high court costs for both the plaintiff and the defendant. The cost involved to reach a settlement agreement out of court is significantly lower than the costs associated with attorney’s fees, trial expenses, and court costs.