Both negligence and medical malpractice can have the same tragic outcomes: injury and death. This may account for the common misconception that they are one and the same.
Both negligence and malpractice involve the following:
- A breach of duty owed to the patient
- Foreseeable consequences
- An action or inaction that caused injury or death
While similar, there is a key difference between these terms. Negligence is one component of malpractice. And without a provable link between the negligence and injury, there is no case for malpractice.
Negligence: Failure to Exercise Reasonable Care
Negligence is not necessarily intentional. According to Merriam-Webster, negligence is “failure to exercise the care that a reasonably prudent person would exercise in like circumstances.” Negligence also could be defined as carelessness. In other words, negligence can be a mistake, an omission, or an oversight.
In the medical community, negligence can cause disastrous results. Perhaps there was a test that should have been ordered, but the doctor failed to exercise due care, and so symptoms continue to go on unchecked, to the patient’s detriment.
In such a case, no one intended the patient to suffer, and the doctor may have performed well on the rest of the case, but the negligence is still present and costly—especially if that test was to diagnose a life-threatening condition like heart disease or cancer.
Malpractice Likened to Dereliction of Duty
Malpractice is defined as a “dereliction of professional duty or a failure to exercise an ordinary degree of professional skill or learning by one (such as a physician) rendering professional services, which results in injury, loss, or damage.”
For example, a surgeon neglects to check the patient’s wristband before conducting brain surgery. This is a risky operation, which causes excess fluid to build up in the brain, and the patient (who was in the hospital for a tonsillectomy) suffers a debilitating stroke. That’s a strong case for malpractice since the doctor should have confirmed the identity of the patient before operating.
Professional Vs. Non-Professional
Medical malpractice is sometimes called professional negligence. A professional is held to a higher standard than someone with no knowledge of proper procedure.
To determine whether someone is guilty of malpractice, the courts will look at whether the accused has the status of a professional. No one can sue the receptionist at a medical center for malpractice. (At least they can’t do it successfully). But a doctor or nurse is a professional who is expected to act in accordance with prevailing professional standards.
The courts also expect that professionals should be able to foresee consequences based on their skills and education. So, a professional should be able to foresee that trying to perform an hour-long procedure in 10 minutes to start the weekend early, will risk serious consequences. There may be grounds for a malpractice claim if this can be proven.
Different Levels of Malpractice
It’s not only a professional, like a surgeon, who can be held accountable for malpractice. As may be the case with nurses, the manager or supervisor of a hospital staff may also be held liable if neglecting to provide adequate supervision or to appropriately delegate tasks. Same too if the supervisor or employer hires unqualified staff, which results in a patient’s harm.
For example, a new nurse makes a serious mistake because they are overburdened with all the preparations for an upcoming surgery while others are off on a coffee break. While an unlikely scenario, if the patient suffers, the supervisor could be accused of malpractice.
Steps Involved in Medical Malpractice Suit
Often the difference between negligence and medical malpractice is determined by how the civil suit concerning the injury or death is handled.
A medical malpractice case is not a typical injury lawsuit. The court will require expert witness testimony in virtually all circumstances. And that witness must be an expert in the specific field in which the injury took place. If the doctor in question was a cardiologist, the expert must have detailed knowledge of issues pertaining to the heart.
The courts will be relying on this expert to help settle two important questions:
- Standard of Care: The medical expert will help decide whether the accused doctor followed the standard of care that most doctors would have pursued in the same situation.
- Causation: The expert also must address whether the doctor’s neglect caused the injury or harm. If someone has a serious disease like cancer, there may indeed be a question as to whether the physician or the disease caused the death or injury in question. There must be a clear connection between the negligence and injury for the case to move forward.
NY Malpractice Awards Are Among Nation’s Highest
Beyond the expert testimony, another vital component of a medical malpractice case is deciding on the compensation owed to the injured as a result of their losses.
More than 250,000 people die in the U.S. each year from medical error—the third top cause of fatalities, behind only heart disease and cancer, according to a Johns Hopkins’ 2016 report.
Though many states limit malpractice dollar awards, New York is one state without such restrictions. According to the National Practitioner Database, New York is one of the top-paying states for medical malpractice with 1,535 payments representing a total of $685 million in 2018. And this trend is only growing, with an 11-percent increase from 2017 to 2018.
For individual payments, the average was $446,461 for 2018. This is good news considering the physical pain, mental distress, lost income, and medical bills patients often face.
Before there is a compensation award, however, the case must demonstrate that the doctor had a duty to the patient and that he or she breached that duty. Off-the-cuff advice given on the golf course does not constitute a doctor-patient relationship.
Bottom line: A patient must show his or her doctor failed to act in a skillful and careful manner, which resulted in physical harm.
Examples of Medical Malpractice
The types of problems that can lead to a medical malpractice suit are as diverse as a doctor’s job. Some examples of potential grounds for medical malpractice are prescribing the wrong medication, treating a patient without consent, failing to follow up with treatment, making the wrong diagnosis, and committing a serious surgical mistake.
Statistically speaking, misdiagnosis represents nearly 32 percent of all cases, which makes it the most prevalent malpractice complaint. Surgical errors are a close second at about 30 percent, and treatment mistakes at nearly 25 percent.
Legal action concerning a medical malpractice case requires timely action. The statute of limitations for a malpractice suit in New York is two and a half years from the date of the injury or harm.
Anyone who thinks they might have a case should not wait until the last moment to consult a personal injury attorney. Because of the expert testimony required, malpractice suits can be one of the most complex civil legal actions, but worth the effort in terms of dollar awards, especially in New York.
If you or someone you know is a victim of medical negligence or malpractice, call 855-468-7626 for a free consultation with an expert medical malpractice attorney at a Sobo & Sobo location near you.