Medical Malpractice

What Is the Difference Between Negligence and Malpractice?

August 19, 2021
malpractice vs negligence

Table Of Contents


The numbers are clear that doctors and other healthcare providers make enough mistakes while treating patients to cause 100,000 deaths each year. Some research has the number even higher at over 250,000 fatalities. Add injuries, and you get millions of victims annually.

Fortunately, these victims can seek compensation for their injuries. But the question many people have during this quest is, "how does medical malpractice differ from negligence?". In this article, we explore the distinction.

What Is Medical Negligence?

Medical negligence refers to unintentional errors made by a healthcare provider while treating a patient. There is no malicious intent involved, and there is also no intent to cause harm.

Typically, medical negligence occurs when a healthcare provider is engaging in a standard course of treatment and, at some point, falls below the standard of care they owe to that patient. They might set a broken bone incorrectly or fail to diagnose a condition.

For a charge of medical negligence to stick, the patient making the allegation must prove:

  • They were a legitimate patient of the healthcare provider
  • The healthcare provider failed to maintain a standard of care
  • This failure caused the patient to sustain injuries

Generally, negligence requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger. The exact occurrence or mechanism of injury or the exact injury does not have to be foreseeable; rather, some injury as a result of negligent conduct must have been reasonably foreseeable for a defendant to be found liable under New York law.  

A defendant may be found to be negligent if an injury is or should have been reasonably foreseeable and the defendant's action or failure to act was a substantial factor in causing that injury.  On the other hand, a defendant will not be found to have been negligent if a reasonably prudent person could not have foreseen an injury as a result of the defendant's conduct, or if the defendant acted reasonably in the light of what reasonably could have been foreseen.

negligence vs malpractice

What Is Medical Malpractice?

Medical malpractice claims in New York encompass not only medical negligence, but also acts of misconduct and other types of unjustifiable acts. As with medical negligence, the person alleging malpractice must demonstrate that they were a patient of the responsible party.

But it is important to note that not all acts of mistakes by healthcare providers are considered malpractice or compensable in medical malpractice lawsuits. The error must rise to a level of professional carelessness. It must be an act that no professional would engage in (or refuse to engage in) under the same circumstances.

In other words, patients in New York do not have the guarantee that their treatment will be perfect and free from error.

Further explanation gives that malpractice refers to the negligence of a professional person in the course and scope of his or her professional practice, such as may apply to a physician, nurse, or another professional.

Medical malpractice refers to the negligence of a doctor and is found when the physician fails to use reasonable care under the circumstances in providing services to his patient, which a reasonably prudent doctor would have used or fails to do something that a reasonably prudent doctor would have done under the circumstances. 

The malpractice must have been a substantial (or proximate) cause of the patient's injury for a medical malpractice case to be viable. For medical malpractice to be found, the doctor's action or inaction, needs to constitute a departure from good and accepted standards of medical care.  In that regard, the opinion testimony of medical experts is essential to establish whether there has been a deviation from good and accepted standards of medical care and practice.

Difference Between Negligence and Malpractice

Is there a difference between malpractice and negligence? In some cases, they may be the same thing. 

  • Medical negligence vs. malpractice requires proof of an act or omission that led to harm without proving intent.
  • Medical malpractice vs. negligence requires proof that the healthcare professional knew or should have known that their actions would result in harm, which is a form of intent.

Malpractice might encompass acts of negligence. But basic negligence does not encompass malpractice.

difference between negligence and malpractice

Examples of Malpractice vs Negligence

For examples of the two, consider surgical errors and a surgeon who accidentally nicks a nerve or a vein while operating. This case would be a medical negligence case. However, if the surgeon performs surgery and decides to skip the appropriate pre-surgery safety procedures, the case would be medical malpractice. Both instances qualify as examples of surgical malpractice.

The line between malpractice and negligence is fuzzy. But a medical malpractice lawyer can help you understand the differences and how they apply to your case.

Can a Medical Incident Be Both Malpractice and Negligence?

The line between medical negligence cases and medical malpractice cases is not always clear. For this reason, certain cases qualify as both medical negligence and malpractice. In fact, some medical malpractice cases might have allegations of both medical malpractice and medical negligence.

The important takeaway is that victims can seek compensation for both negligence and malpractice, depending on the details of their case. Additionally, they need not worry too much about these legal technicalities when they have an attorney representing them who will ask all the important questions to prove medical malpractice.

Who Can Commit Medical Negligence vs Malpractice?

In the course of a patient's treatment, various healthcare professionals might work in concert to attain optimal results. Each medical professional who treated you can potentially be held to pay in an adult or pediatric medical malpractice claim or a medical negligence claim.

These claims might include:

Essentially, any of these and other medical professionals can commit medical negligence and malpractice. Those who commit medical negligence vs malpractice might include hospital or clinic administrators and staff.

What Is Duty of Care, and How Does It Affect Cases of Malpractice vs. Negligence?

Duty of care is one of the foundations of malpractice and negligence claims. If a healthcare provider does not owe you a duty of care, they cannot be held liable for negligence or malpractice. Generally speaking, your primary care provider owes you a duty of care, but another PCP in the same office who has never treated you might or might not.

When you hire a personal injury lawyer, they will work hard to establish the duties of care owed to you by whichever professional should be held liable for your injuries.

What Should You Do If You Experience Medical Malpractice or Negligence?

If you experience medical malpractice or negligence, there are specific steps you should take afterward to protect yourself and your right to compensation.

  • Bring your concerns to your care provider. Tell the team that treated you about your concerns and inform them that there is a problem. They have resources to help you understand the procedures you underwent.
  • Find a medical malpractice lawyer. Although your medical team will be helpful initially, you need an advocate who will look after your losses and fight for you.
  • Remember the deadlines to file a medical malpractice lawsuit in New York. Victims of medical malpractice and negligence have 30 months to file a lawsuit unless the Discovery Rule or other exceptions apply.

Speak to Experienced Lawyers Today!

Both medical negligence and medical malpractice can cause serious harm and even death to patients. Although there are important differences between the two, the result for the patient is the same — financial and emotional losses.

At the Jacob D. Fuchsberg Law Firm, our attorneys handle negligence and medical malpractice claims in the state of New York. If you've been the victim of another party's negligence or malpractice and suffered a serious injury, we invite you to connect with a personal injury attorney at our firm to speak about your legal rights. You deserve maximum compensation for your losses. Give us a call at 212-869-3500 or reach out online to schedule a free consultation.