Negligence vs. Malpractice: What’s the Difference?

Filing a personal injury claim against a medical provider or company is complex. One medical mistake can cause serious harm. Whether your claim is for medical negligence or medical malpractice can make a significant difference in how your personal injury attorney moves forward. When hiring a lawyer, it’s important to know they understand the difference between these two legal terms and their potential impacts on your compensation.

Medical Negligence

Negligence typically refers to a person’s or entity’s carelessness or recklessness. In order to file a lawsuit for medical negligence, the accused must be a medical professional or institution (doctor, nurse, hospital, etc.), have a legal duty to protect your safety, and have breached that duty. The breach of duty must be the direct cause of your injury, so it must be proven your injuries were a direct result of that breach.

Your attorney must describe how a professional’s or entity’s actions were in violation of acceptable standards of medical care. One aspect they’ll look at is if they acted differently than other trained professionals would in similar circumstances. Examples of medical negligence include a failure to recognize symptoms, a misdiagnosis or absence of a diagnosis, unnecessary surgery, and surgical errors.

Medical Malpractice

The primary difference between negligence and medical malpractice is intent. Medical negligence is generally a mistake. This mistake, however, has had a serious impact on the patient’s health and well-being. Medical malpractice differs in that a medical professional knowingly didn’t provide a proper standard of care, whether maliciously or not. The resulting harm would have been known to be avoidable should alternative measures had been taken.

A doctor or provider can be sued for medical malpractice if they knew something should have been done to help a patient, such as ordering a diagnostic test. Knowing the potential risk of harm, they decided not to proceed because the insurance company would not pay for it. The poor decision-making arose out of an intent to go against their best judgment. If, for example, a nurse leaves a sponge in a surgical wound by accident, this does not demonstrate intent to harm the patient. It could be considered negligence, but it is up to your attorney to decide based on the facts of the case.

Do I Have to Be Injured in Order to Sue?

Yes. There is no legal pretext for suing a medical professional for negligence or malpractice if you were not harmed. And just because you were injured doesn’t mean you definitively have a case. Doctors and nurses aren’t always right and the human body is complex. They can exercise a reasonable standard of care and the outcome may not always be the best one. Therefore, a medical mistake isn’t always a case of negligence or malpractice.

What Types of Damages Can I Receive If I Win?

There are different types of damages that patients can receive in a legal settlement. Special damages cover medical bills and other quantifiable expenses. General damages include pain and suffering, while punitive damages may be added on, but never awarded alone, to punish the defendant. While they’re not intended to compensate for your needs, they may be awarded in part or in full.

Contact The Law Offices of Jacob Emrani

We have won millions of dollars in medical malpractice and negligence cases involving defective medical devices, birth injuries, prescription drug injuries, elder abuse, and wrongful death. Our legal team fights for your rights every step of the way. If necessary, we will take your case to court and do what it takes to recover maximum financial damages. Call (888) 952-2952 to receive your free case estimate.

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southern california


714 W. Olympic Blvd.
Suite 300
Los Angeles, CA 90015


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Los Angeles

serving southern california


714 W. Olympic Blvd.
Suite 300
Los Angeles, CA 90015


(888) 508-5085