Medical Malpractice vs Negligence: What’s the Difference?

Updated on January 13, 2022
Medical Malpractice vs Negligence Whats the Difference copy

10% of deaths in the U.S. are caused by medical mistakes or errors. This is unsettling, considering we put so much trust into the hands of medical professionals.

If you or a loved one were affected by a mistake from a medical professional, you’re probably considering taking legal action.

Before filing a lawsuit and contacting a lawyer, you should know if your case was due to medical negligence or medical malpractice.

Here’s your guide to medical malpractice vs negligence and the differences between both.

Medical Malpractice

The legal definition of medical malpractice is the breach of duty by a medical provider and even by a medical facility. However, this breach of duty is specified by intent rather than carelessness.

Medical malpractice is specific to a mistake or error that causes harm to a patient, or even death.

For example, let’s say a doctor runs a diagnostic test and finds the patient is too high-risk for an operation but performs the operation anyway.

Or, if the doctor writes a drug prescription that’s too high or they prescribe a medication that the patient said they can’t take and the patient suffers from adverse effects.

If harm or death occurs as a result of the operation, the patient or their loved ones can pursue legal action.

Keep in mind, not every bad outcome is the result of malpractice. Every operation, prescription medication, and other medical necessities have unclear outcomes.

There are plenty of tests and trials required before a doctor can recommend a procedure or medicine to a patient. In addition, patients are required to sign a document stating their doctor isn’t liable for specific complications.

This is why winning a medical malpractice lawsuit is so difficult. If you’re filing a medical malpractice lawsuit, it’s essential you choose a lawyer who specializes in or has experience in medical malpractice law.

Medical Negligence

Medical negligence is similar to malpractice as in it breaches the duty of a medical practitioner or facility. But unlike malpractice, negligence is defined more on carelessness than intent.

The most common examples of negligence include the doctor not following standards or not paying attention during a check-up or an operation. In addition, negligence doesn’t have to result in injury, harm, or death to the patient.

While medical negligence cases are more common than malpractice ones, they’re harder to prove. If the doctor does no harm, it’s difficult to gain evidence of negligence.

Common Examples of Malpractice and Negligence

There are many examples of both malpractice and negligence. Here are common instances of both.


  • Poorly performing a procedure
  • Neglecting common steps in the procedure (properly sanitizing equipment, etc.)
  • Leaving an item or tool inside the patient and closing the patient up
  • Operating on the wrong area of the body (i.e. the right arm versus the left arm)
  • Performing a nonconsensual operation
  • Performing an unnecessary surgery
  • Prematurely discharging the patient


  • Poor sanitation
  • Neglecting side effects and other concerns
  • Misdiagnosis
  • Poor communication
  • Surgeon/doctor/nurse fatigue

If your situation is not listed here, consult with a lawyer and see if your case still qualifies for a lawsuit.

How to Win a Medical Malpractice or Negligence Case

As stated earlier, winning a medical malpractice or negligence case isn’t easy. You’ll need the help of an experienced lawyer who can fight in your defense.

First, gather as much evidence as you can. First, find evidence of the doctor’s lack of care or their intent to harm.

This includes any notes such as your prescription(s), facts about the medication or operation, any documents you have proving a past condition or allergy, and other documents proving the doctor breached their position.

Another way to gain evidence is by finding a medical expert witness. This witness will take a look at your case and will identify where the doctor went wrong.

Keep in mind, it’s difficult to find a medical witness because they risk their reputation. It’s best to find a witness through your lawyer, who has a network of medical experts for this reason.

You’ll also have to prove any injuries or death of a loved one was the result of the medical malpractice. For example, if an existing condition made you high-risk for an operation, you have to prove this as well as prove the existing condition.

If the malpractice had anything to do with your prescribed medication, you’ll have to prove the dosage you took was too high or was higher-risk for complications.

Don’t be surprised if your case takes several years. These cases are very complex and often require many different hearings.

What If You Win Either Case?

If you decide to file a medical malpractice or negligence case, you’re probably wondering what type of compensation you’re entitled to. You can gain a settlement for the:

  • Payment of the medical care
  • Compensation for lost wages (if you’re out of work)
  • Payment for future medical procedures, medications, etc. (if the medical error caused injury or damage)
  • General compensation for suffering and distress
  • Compensation for any lost earning capacity (if you can no longer work due to permanent injuries from the medical error)

In addition, the medical practitioner may be subject to further punishment. This includes license removal and possible jail time, depending on the damages. Keep in mind, these punishments usually only occur for extreme cases.

Malpractice vs Negligence: They’re More Common Than You Think

Were you a victim of a breach of medical practitioner treatment? You could be entitled to compensation. The compensation you receive can help you pay for medical bills, lost wages, and any future medical expenses.

But was your case medical malpractice or medical negligence? Understand the differences between medical malpractice vs negligence before you consult a lawyer.

Healthcare and law is a complex topic, for both individuals and professionals. If you need more advice, continue reading our healthcare blog. We offer a myriad of different medical advice and we even have a legal section.

The Editorial Team at Healthcare Business Today is made up of skilled healthcare writers and experts, led by our managing editor, Daniel Casciato, who has over 25 years of experience in healthcare writing. Since 1998, we have produced compelling and informative content for numerous publications, establishing ourselves as a trusted resource for health and wellness information. We offer readers access to fresh health, medicine, science, and technology developments and the latest in patient news, emphasizing how these developments affect our lives.