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What Is the Difference Between Negligence and Malpractice?

Published in Medical Malpractice on May 10, 2020

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A civil lawsuit after an incident that causes an injury often aims to prove the at-fault party’s (defendant’s) negligence or malpractice. These terms both describe shortcomings by the defendant that allegedly caused the victim’s injuries and damages, and are often used interchangeably. On a technical level, however, negligence and malpractice are two different things. While both could point to a defendant’s liability for a victim’s damages, the standards of proof and type of claim could vary according to whether the plaintiff is asserting the defendant’s negligence or malpractice. Compare and contrast these two terms with help from a personal injury lawyer in Boston.

What Is the Main Difference?

 One main factor differentiates a negligence claim from a malpractice claim in Massachusetts: a professional standard of care. An accident victim could bring a negligence claim against almost anyone who appears to have breached a duty of care and caused the accident. The defendant does not have to be a professional to be liable for damages. A negligence claim against someone who was acting in the scope of his or her job at the time, however, may take the form of a malpractice lawsuit if the defendant owed special duties of care to the plaintiff according to their professional relationship.

 On a legal level, negligence in Massachusetts is the failure to use the degree of care a reasonably prudent and careful person would have under similar circumstances. Malpractice describes a professional committing improper or unethical conduct or failing to use a level of skill a reasonable person in his or her official position would have. Malpractice claims can name doctors, dentists, surgeons, nurses, attorneys, accountants, police officers, and other professionals as defendants.

 During a negligence claim, the plaintiff’s side of the case will only need to prove the defendant guilty of carelessness or a breach of duty that caused the accident. A malpractice lawsuit, on the other hand, requires the plaintiff to establish a breach of the professional duty of care. This may require additional evidence or steps, such as bringing in a subject-matter expert to speak on the professional standards of care for the defendant and/or situation. A plaintiff might need to hire a physician, for instance, to establish the duties of care a doctor owed in a situation.

Comparing Negligence and Malpractice

 It is possible to bring a negligence claim against a professional. In a case alleging medical negligence, for example, the plaintiff is asserting the defendant ignored his or her professional responsibilities and unintentionally caused an injury or death. By contrast, medical malpractice asserts the professional intentionally or knowingly breached a professional duty of care, resulting in injury or death to the patient. In this sense, negligence is unintentional while malpractice is intentional. The exact usage of both terms can depend on state law and the individual case.

 Both negligence and malpractice cases are civil claims, meaning they aim to reimburse the victim for his or her losses rather than to punish the defendant. The defendant does not have to have broken a law to be liable for a victim’s damages in a civil claim. The defendant could be liable for simply breaching his or her duties of care to the plaintiff. Both types of cases will have the same burden of proof, in most situations. This burden requires the plaintiff to establish a duty of care owed, a breach of this duty, causation for the injury and damages. A malpractice claim could have a different statute of limitations than a negligence claim as well.

What Are the Damages of Both?

 If the plaintiff’s attorney during a negligence or malpractice case can prove the necessary elements, the plaintiff could receive financial compensation for his or her damages. A damage award can repay a victim for economic and noneconomic losses. These can include medical bills, lost income, pain and suffering, lost quality of life, property damages, legal expenses, and punitive damages. Both negligence and malpractice claims in Massachusetts have the same list of compensable losses. The specific types of damages awarded will vary by case.

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