When someone is injured by a lack of care in a medical facility, you might assume that they were a victim of medical malpractice—and often, you would be right. Medical malpractice, also called medical negligence, involves the breach of a duty of care owed by a medical professional to a patient, which causes the patient’s injury and resulting damages.
Usually, incidents of medical malpractice are unintentional, such as a nurse making a medication error or a doctor misreading an X-ray, delaying the diagnosis and treatment of a serious illness. Sometimes, medical malpractice is the result of an act the professional knows is wrong, such as sexual abuse by a therapist.
In the examples above, any injury to a patient would be attributed to the medical caregiver’s professional judgment and skill. A nurse should know how to read a medical chart and ensure that a patient receives the appropriate dose of the prescribed medication. A radiologist should be trained to recognize the signs of disease on an X-ray. And therapists certainly know that they are bound by ethical rules that prohibit sexual contact with patients.
But injuries can happen in hospitals, clinics, and doctors’ offices that are not caused by errors in professional judgment or deficiencies in skill. Those injuries may not constitute medical malpractice, but if they involve ordinary negligence, they may still be compensable.
Like medical negligence, ordinary negligence involves four elements: a duty of care; a breach of that duty; causation of an injury; and damages. Unlike medical negligence, however, the breach of the duty of care need not be related to a professional’s judgment or skill. We all owe a duty of reasonable care to everyone around us—and they owe the same duty of care to us.
An example might help to illustrate. Let’s say you are shopping in a grocery store, and another shopper is rapidly pushing their cart down the aisle while consulting the shopping list on their smartphone. As they are barreling down the aisle, they hit you with their cart, knocking you to the floor and causing you to hit your head on the corner of a shelf.
Your injury is severe enough that you have to go to the hospital for evaluation, and you are diagnosed with lacerations, a concussion, and a broken wrist. You incur thousands of dollars in medical bills, and are forced to take three weeks off of work to recover, which means you lose income.
That’s ordinary negligence. The other shopper owed you (and everyone in the store) the duty to look where they were pushing their cart. By focusing on their phone, they breached that duty of reasonable care. That breach led directly to your injury. You incurred damages (medical bills and lost wages) as a result.
Now, instead of a grocery store, picture a hospital hallway. Instead of a shopping cart, picture a medicine cart. And instead of a distracted shopper looking at a grocery list, imagine a distracted nurse looking at cat memes. If their distraction causes them to run into you and knock you over, leading to the same injuries as those described above and extending your hospital stay, that, too, is ordinary negligence.
It’s not medical negligence because the nurse didn’t injure you due to a deficiency in his professional judgment or skill. He injured you because he was pushing a heavy cart and not paying attention to where he was going.
Now, let’s say that you were safely back in your room when the nurse decided to check his phone for new cat memes—and as a result of his distraction, he administered the wrong medicine to you. That’s medical negligence, because a reasonable nurse would focus on the task at hand and ensure that they were administering medication as ordered.
In many states, you have to take extra steps before filing a claim for medical malpractice that are not necessary to take in an ordinary personal injury lawsuit. By failing a claim for ordinary negligence, you can bypass those requirements. But even if there is no requirement of filing a medical affidavit or having your claim screened by a special panel, it is wise to allege both ordinary and medical negligence.
Sometimes the line between medical negligence and ordinary negligence is a blurry one, so it may make sense to plead both in your claim if applicable. Ordinary negligence can be easier to prove in some cases than medical negligence. The decision is not a matter of “throwing a bunch of claims at the wall and seeing what sticks.” It’s looking at a patient who was injured and suffered damages in a medical setting, and pursuing every reasonable avenue for compensation. If you have been injured in a hospital or other medical setting, speak to an experienced medical malpractice attorney. They can help you decide whether you have a claim for medical negligence, ordinary negligence, or both. To learn more about the distinction between ordinary and medical negligence or to schedule a consultation, contact the Fraser Law Firm.
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