What’s the Difference B…

“Medical malpractice” is a term that most people are familiar with. Less common is the term “medical negligence.” Often, the two phrases are used interchangeably. What are medical malpractice and medical negligence, and is there any difference between them?

Some states recognize separate claims for medical negligence and medical malpractice. In Oregon, what would be called medical negligence in some states also falls under the umbrella of medical malpractice.

The difference that some states identify between the two terms is typically the requirement for “intent” in medical malpractice. Intent in these cases does not mean that a provider actively intended to harm a patient, but rather that the provider knew, or should have known, that their action (or omission) would harm the patient. In those states that distinguish between the two terms, medical negligence is typically easier to prove.

Both medical malpractice and medical negligence involve a medical provider who makes a mistake (or intentional action) that results in harm to the patient. To succeed with a claim of either medical negligence or medical malpractice, four elements must be met.

The Existence of a Duty of Care

A “duty of care” is a legal obligation imposed on someone (in this case a medical provider) to exercise reasonable care when taking an action that could harm someone else. Most medical treatment could be harmful if performed carelessly. Otherwise life-saving medicine could be lethal if administered in the wrong dose; a surgery can be healing or disabling depending on how it is performed.

In a medical malpractice case, this element is usually the easiest to prove, since all medical providers have a duty of care toward their patients.

A Breach of the Duty

In order to prove medical malpractice, the person making the claim (the plaintiff) must show that the doctor, nurse or other care provider breached their duty of care. In other words, they failed to act as a reasonable provider, similarly situated, would act in that situation. A reasonable nurse would check the dosage of a medicine in a patient’s chart before administering it. A reasonable surgeon would not perform surgery with improperly sterilized instruments, or take shortcuts during the procedure. A reasonable emergency department doctor would not fail to order immediate imaging for a patient who came in exhibiting textbook signs of cauda equina syndrome.

No matter how obviously or seriously a provider breaches the duty of care, there are still other requirements for a successful medical malpractice claim.

Injury to the Patient

A surgeon could show up drunk to perform surgery (an outrageous breach of the duty of care), but if he nonetheless performs the surgery flawlessly, the patient would have no claim for medical malpractice. That is because, in order to successfully prove medical malpractice, a plaintiff must show that they were harmed in some way, and that the harm was caused by the provider’s breach of care.

If the patient’s procedure was performed properly, and they did not experience harm that could be tied to the surgeon’s breach, the malpractice claim would fail. (However, the intoxicated surgeon might well face consequences from the hospital or the medical licensing board!)

Damages to the Patient

The last element of a medical malpractice claim is that there are damages to the patient. Damages may be economic (like lost wages due to the injury, or the cost of further medical care to treat the injury) or non-economic damages (like payment for pain and suffering). The damages must spring from the injury that resulted from the provider’s breach of duty.

In the emergency department example above, if an active, otherwise healthy patient complained of sudden onset incontinence, severe lower back pain, and numbness in the “saddle region,” a reasonable doctor would promptly perform testing for cauda equina syndrome, which is a surgical emergency. Delay in testing and treatment dramatically worsens outcomes and may lead to serious, permanent, disabling medical issues.

If the doctor sent the patient home without adequate testing, and they ended up paralyzed and permanently incontinent as a result, they would have significant financial damages: for inability to work; years of future medical treatment and physical therapy; the need to modify their home and vehicle to accommodate their needs; and pain and suffering, among others.

Claims for medical malpractice must be made within a limited span of time after the injury takes place. Unfortunately, it may not be obvious to a patient what their total damages will be until years down the road. Fortunately, an experienced medical malpractice attorney can help a patient identify what their claim may be worth.

If you believe your medical provider breached their duty of care to you, and you have damages from the injuries that resulted, consult with an attorney as soon as possible to determine whether you have a claim for medical malpractice or medical negligence. Whatever you call it, a successful claim could not only ease your financial concerns but hold medical providers accountable for their actions and prevent them from harming others.

To learn more about your options, contact The Fraser Law Firm P.C. to schedule a consultation.