Medical malpractice can be caused by various actions or failures to act, but the underlying cause of medical malpractice will always boil down to negligence. This is because malpractice is simply a fancy word for negligence. So, practically speaking, medical malpractice is the same thing as medical negligence.
In general, negligence means not exercising reasonable care, or doing something wrong. In medical malpractice cases, courts often define negligence as a health care provider’s failure to exercise the degree of care and skill of the average health care provider who practices the provider’s specialty, taking into account the advances in the profession and resources available to the provider.
In this article, we'll look at the range of negligence in medical malpractice cases.
An accident is not negligence. Technically, an accident is no one’s fault. But what appears to be an accident at first blush might be negligence if it is examined further.
Let’s start with a non-medical example. If someone slips on ice, many people will usually refer to this type of incident as an accident. But was it really an accident? If, for example, that person slipped on ice on private property where the property owner had a legal duty to remove the ice, then the slip was not an accident; it was due to someone’s negligence.
Let’s now switch to a medical example and use the previous scenario of a surgeon severing a blood vessel. Let’s say that the surgeon did sever a blood vessel during an operation, and after the operation told you that he/she accidentally severed the blood vessel. Was that really an accident (sometimes referred to as an unavoidable or foreseeable complication), or was it negligence? How do you tell?
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 very 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 the blood vessel. In that case, the slicing of the blood vessel would generally be considered to be a foreseeable complication (or an unfortunate accident) and not negligence.
A physician’s error can be called a mistake or a fault, or even an oversight or a blunder, but these are all the same thing -- physician negligence. There are two main types of mistakes that a physician can make, an error in judgment or an error in carrying out the treatment (i.e., operational error). An error in judgment is like a mental mistake. This can occur, for example, when the physician thinks about how to treat a patient and then selects the wrong option. An example of an error in judgment could be when the physician diagnoses a disease, but it is the wrong diagnosis.
In contrast to the mental mistake of an error in judgment, an error in carrying out the patient’s treatment is more like a physical mistake. An example of an error in carrying a patient’s treatment would be a surgical mistake such as the surgeon severing a blood vessel.
Some states have abolished the concept of gross negligence. In the states where gross negligence still remains, gross negligence is usually defined as substantially and appreciably more unreasonable behavior than ordinary negligence. It is aggravated negligence that amounts to an indifference to one’s legal obligations with respect to the rights of others. An example of gross negligence in the context of medical malpractice might be a surgeon performing an operation while drunk.
The significance of a finding of gross negligence usually relates to the plaintiff’s damages. In states where gross negligence still exists, a plaintiff who proves that the defendant was grossly negligent is generally entitled to additional damages, either punitive damages or what is sometimes called enhanced compensatory damages.