The two terms are interchangeable when it comes to telling the difference between malpractice and negligence. There is more to it than a battle of semantics, however. It all boils down to this: not all negligence is malpractice, but all malpractice is negligence. You need a medical malpractice attorney to consider the evidence and build an argument as to whether your case is negligence or malpractice. It is determined by how the case is approached and what must be proven regarding the standard of care and injury resulting from a breach of the standard of care.
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What Is Negligence?
As medical science has evolved, many procedures and policies have been put into place to protect the health of their patients. These accepted practices could be anything from using proper medical equipment such as sterile surgical gloves and sterile surgical instruments, proper handwashing, knowing how to perform operations and procedures, licensure, methods of diagnosis, and any number of things endemic to the profession.
Doctors go through several years of schooling with practical training, residency, and methodology, which gives them competence in their profession and keeps their patients safe. This set of criteria is called the standard of care.
Negligence is when a doctor is in breach of their standard of care. That isn’t to say that this breach of conduct or policy would necessarily result in injury or damages. Negligence could be ignoring x-rays or ultrasounds that should have been required to complete a diagnosis. It could be not wearing proper PPE during an examination or procedure.
What Is Malpractice?
Malpractice takes negligence a step further. Not only was the standard of care omitted or ignored, but injury and damages resulted from that negligence. You would need an expert witness to determine that the party at fault acted in a way that breached the standard of care. If the breach resulted in death, injury, and subsequent damages to the patient or their family, it would be considered malpractice.
Injuries would have to incur:
- Lost time from work
- Loss of motor function
- Loss of limb
- Cognitive problems affecting memory or thought processing
- Permanent disability
- Medical expenses
- Physical therapy expenses
- Vocational training resulting from disability or injury
- Pain and suffering
- Post-traumatic stress
- Impact of death on survivors and their ability to provide for themselves
Some Examples of Negligence and Malpractice
In some cases, it wouldn’t take much to prove that an incorrect test or diagnosis led to an amputation and caused a patient to face a life of disability. It might be another task if a doctor didn’t order an ultrasound for a patient presenting abdominal pains, and what they diagnosed as heartburn turned out to be a gangrenous gallbladder. It might be negligence since they were in breach of duty if the condition was caught in another diagnosis at another clinic.
The tools and information at their disposal are part of the standard of care. Gathering information or having a medical history to guide a doctor in their diagnosis and treatment is also part of the standard of care.
A medical history of knowing that a patient has allergies to certain metals might become problematic if a doctor ignores these facts and uses these kinds of alloys in a procedure to fuse a patient’s spine or reconstruct a knee.
The resulting allergic reaction could be life-threatening, cause a painful reaction, and even anaphylaxis. The cost of another surgery, the pain and suffering from the reaction, and the time the patient missed work when a doctor was aware of their sensitivity would indicate a breach of the standard of care, resulting in injury and damages. Hence, malpractice.
Why You Need a Medical Malpractice Attorney
The difference between negligence and malpractice can be very nuanced. After the moment of injury or negligence, the clock starts ticking to take the case to court. Statutes of limitations are often short for negligence (two years in most cases), and after that time is up, you can no longer seek litigation or damages.
An attorney can consider the evidence and build an argument as to whether your case is negligence or malpractice. The difference between the two often hinges on what an expert witness would testify. Was the accused doctor in breach of the standard of care, and did their negligence adversely affect the victim? If so, the lawyer can establish to what extent these injuries caused damages and estimate an appropriate amount to be awarded to offset those damages.
How an Attorney Functions in This Case
An attorney can take the information they gather from their investigation and present it as an argument in negotiation. Most of the time, hospitals and their insurers will offer as low a settlement for negligence and downplay the severity of the injury and damages to save money and protect their reputation. They may offer a settlement and choose to censure their doctor in-house.
In these cases, a negligence or malpractice case may only show that they were accused but not yield the results of those accusations. If the case is settled out of court, the patient is usually bound to a non-disclosure agreement, and any discipline is handled in-house or by a medical board.
An attorney for medical malpractice can help you decide how to proceed on a case outside of being awarded a settlement. They might believe your case is strong enough to warrant criminal charges rather than just civil ones.
In this case, the doctor in question would have to stand trial, and the burden of proof would rest on the prosecution to determine guilt. In either civil or criminal court, a judge may issue fines, instruct the barring of a license, and award damages to the victim. In criminal court, the doctor may be charged with assault, manslaughter, or other charges which could result in imprisonment.
Contact a Medical Malpractice Attorney Near You Today
If you believe you have been a victim of negligence or malpractice, you need a Chicago lawyer for your medical malpractice case to help you.
Medical malpractice can result in substantial medical bills, lost time at work, and reduced quality of life. Your rights need to be protected. Once the statute of limitations runs out, you have missed your only chance to make things right.
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