The practice of law is very precise. For instance, in legal documents, the words “may” and “shall” are not interchangeable in any way. Both can lead to entirely different legal outcomes, depending on the situation.
Such is also the case with the laws that deal with medical malpractice and negligence. Are they different or are they the same thing?
Negligence versus malpractice
In the most general terms, negligence is the umbrella under which malpractice claims arise. Although they do not truly diverge, while anyone can be accused of negligence, the same is not true for malpractice.
Negligence can be alleged whenever someone fails to exercise the care that “a reasonably prudent” individual would in similar situations. Negligent people typically are careless rather than having a malicious intent.
However, to accuse someone of malpractice, that person must be a licensed professional, e.g., a doctor, nurse or other medical professional. That person must have failed in their efforts to treat the patient by not meeting an appropriate standard of care. As a result, the patient was harmed or their condition worsened.
Standards of care vary
You should also understand that standards of care are not universal but germane to the situation. For instance, one would expect a much higher standard of care from a top surgeon at a renowned teaching hospital in a major metropolitan city than one would from a general practitioner in a rural community hospital.
Ditto for a surgeon operating in a field hospital in a war-torn country versus a surgeon with access to cutting-edge medical devices in a big city hospital.
Claims of negligence and malpractice are torts
Both claims of negligence and malpractice fall under the category of tort law. Torts are defined as “wrongful act[s] or . . . infringements of . . . right[s] (other than under contract) leading to legal liability.”
All torts are filed in civil court. But in some cases, there may be criminal components that are dealt with independently in criminal courts. Not all claims of malpractice and/or negligence will rise to the level of a criminal charge, however.
Do you have a legitimate claim?
Medical negligence and malpractice cases are very complex and can be challenging to prove. There are four main things that must be proven to succeed with your claims:
- The defendant must have had a duty to you
- They must have breached that duty
- Their breach caused you harm
- You have damages resulting from the harm
If you think that you have a provable case, discuss your concerns with a Covington medical malpractice attorney.