A Doctor's Liability for Mistakes: Medical Error, Malpractice, or Gross Negligence?

Some health care mistakes are more serious than others. Learn more about the varying degrees of fault for medical errors.

By , Attorney · UC Law San Francisco

Doctors and other medical professionals have a duty to protect their patients and provide them with reasonable care. But they don't have to be perfect. Medical professionals, like all people, sometimes make innocent mistakes and patients sometimes have bad outcomes even when doctors do everything right.

Medical malpractice is the legal term for medical negligence (carelessness) by a health care professional or institution. In this article, we'll break down the differences between routine medical errors and medical malpractice. We'll also explain when ordinary medical negligence is so severe that it becomes gross negligence.

Medical Errors

Medical errors are more common than patients would like to think. According to the Harvard Business Review, an estimated 1.2 million people are harmed each year by medical errors in U.S. hospitals. Some medical errors are malpractice, while others are not.

Non-Medical Example of Accident vs. Negligence

To understand the difference between medical errors and medical malpractice, let's look at a non-medical example first. Say you're a customer who breaks your leg after you slip and fall on ice in front of a store. Is this a pure accident? Just bad luck? Or did the store owner have a legal duty to remove the ice? If the store owner was legally responsible for removing the ice that caused your injury and neglected to do so for whatever reason, you can file an insurance claim or a personal injury lawsuit against that store owner to cover your medical expenses and other losses.

Medical Example

Now let's switch to a medical example. Say a patient is having knee replacement surgery. During the surgery, the surgeon accidentally damages blood vessels in the knee. The patient wakes up and experiences pain and swelling in the knee and calf. The surgeon immediately requests a consult with a vascular surgeon and the patient has to have another surgery to repair the damage. Is a vascular injury the kind of routine mishap that can happen in the absence of negligence during knee replacement surgery (sometimes called a "foreseeable complication") or was it malpractice? How do you tell?

Foreseeable Complication or Malpractice?

You start by looking at the surgery and the complication rate. Some operations are simply more difficult than others. For example, a hernia surgery is a very common surgery that has a very low rate of complications. It would be unusual for a surgeon to sever a blood vessel during a hernia surgery. On the other hand, some surgeries are extraordinarily difficult. They are so difficult that they might have a very high complication rate. If, for example, the surgeon was trying to remove a tumor that had wrapped itself around a major blood vessel, that might be an operation that is almost impossible to perform without slicing a blood vessel. In that case, the slicing of the blood vessel would generally be considered to be a foreseeable complication and not negligence.

Informed Consent

Next, consider whether the patient was warned of the risk of the complication that the patient is now suffering prior to the surgery. Returning to our knee replacement example, was the patient warned that blood vessels may be damaged during the surgery? In legal terms, did the patient give "informed consent" for the surgery? If so, the surgeon may have a defense to a medical malpractice claim, especially if the surgeon provided timely follow-up care as in our example.

No Malpractice in the Absence of Injury

Medical errors that don't harm patients typically don't qualify as malpractice. For example, let's say a doctor prescribes the wrong dose of medication, but a nurse catches the mistake before dispensing the drug to the patient. The doctor clearly made a medication error, but the error didn't injure the patient, so the doctor isn't liable for malpractice. If the patient had received the medication and experienced an adverse reaction, the doctor may be liable for malpractice.

Medical Malpractice

Medical malpractice happens when a health care professional or institution (like a hospital or clinic) harms a patient by providing sub-standard treatment. To make a medical malpractice claim you have to prove all of the following:

  • Your health care provider owed you a duty of care.
  • Your health care provider violated ("breached") that duty of care.
  • You suffered an injury that was caused by your health care provider's violation of the duty of care.

Duty of Care

The existence of a duty of care isn't hard to prove. A duty of care arises when there's a professional relationship between you and a health care provider. Professionals, like doctors, nurses, and pharmacists owe patients a duty of care. Organizations that deliver health care, like hospitals and clinics, also owe patients a duty of care.

Breach of Duty

The duty of care requires health care providers to meet the applicable standard of care, which means a health care provider has to treat each patient with the same skill as a reasonably careful provider under similar circumstances.

Once you've established the applicable standard of care, you have to prove that your provider failed to meet it. Examples of common breaches of care by doctors and hospitals include:

  • misdiagnosis
  • missed diagnosis
  • surgical errors
  • childbirth injuries
  • medication errors
  • anesthesia errors
  • premature discharge, and
  • poor follow-up care.


An injury is the harm a patient suffers—physical, mental, financial— because of a provider's sub-standard care. The purpose of a medical malpractice lawsuit is to get patients compensation for their injuries (called "damages").

Learn more about types of damages in medical malpractice cases.

Gross Negligence

Medical malpractice laws vary from state to state. Some states have tried to shield emergency care providers from the threat of malpractice lawsuits for ordinary negligence. Instead, patients who receive emergency care in these states have to prove that the provider committed "gross negligence."

To prove gross negligence, a patient essentially has to show that the provider recklessly disregarded the safety of the patient. Gross negligence exists somewhere between ordinary negligence and intentional harm.

In some states, patients are eligible for punitive damages if they can prove that a health care provider acted with gross negligence. Punitive damages are meant to punish health care providers for wrongdoing rather than compensate patients for harm. Some states limit ("cap") the amount of punitive damages a patient can get in medical malpractice cases.

Some examples of medical errors that may rise to the level of gross negligence include:

  • failing to administer anesthesia
  • performing surgery while intoxicated
  • operating on the wrong limb
  • leaving a surgical sponge inside a patient after surgery, and
  • injecting a deadly dose of the wrong medication.

Talk to a Lawyer

Medical malpractice is a complex area of law. If you've suffered an injury because of a medical procedure, talk with an experienced medical malpractice lawyer. A lawyer can answer your questions, help you "value" your case, and advocate for you.

Learn more about hiring the right lawyer for your medical malpractice claim. When you're ready, you can connect with a lawyer directly from this page for free.

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