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What is the Difference Between Malpractice and Negligence?

By Christina Edwards
Updated May 16, 2024
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The two terms malpractice and negligence are sometimes used interchangeably, but there is some difference between them. Malpractice is defined as negligent or improper action performed by a professional individual. Negligence, on the other hand, refers to a failure to perform actions or services that are required by law. Malpractice and negligence often both result in some sort of injury, or possible injury.

One of the major differences between malpractice and negligence is the type of person responsible for the action, or lack thereof. Professional individuals, such as lawyers or physicians, are typically the only ones who can be accused of malpractice. The actions of an individual being accused of malpractice are usually compared to the actions of other professionals in his field to prove guilt. If his actions, which caused harm to another individual, went against the standard course of action, he could be found guilty.

A surgeon, for example, who performed an unnecessary procedure on an individual without her specific consent could be charged with medical malpractice. Since permission from the patient is usually required for all non-emergency medical procedures, the surgeon's actions differ drastically from what other surgeons in his position would do. Also, doctors who make other types of mistakes, such as prescribing the wrong medications can also be found guilty of malpractice.

Negligence usually refers to an injury or possible injury that was a result of a person neglecting to do something. Instead of some sort of action, negligence often refers to inaction. A person can be found guilty of negligence if he did not perform some sort of action that another average, reasonable person would.

A good example of negligence is a driver who ran a red light. If he neglected to stop for a light and caused an accident and injuries, he could be found guilty of negligence. To prove negligence, however, a judge or jury must be convinced that a reasonable person most likely would have performed some action that would have prevented the accident. If the driver ran the red light, but did not cause an accident, he would most likely not be found guilty of negligent driving. He could, however, be issued a traffic citation.

A professional can also be sued for malpractice and negligence at the same time, since malpractice can consist of negligence. For example, medical negligence is a form of medical malpractice, and it occurs when a health care provider does not provide needed care. A doctor who failed to provide the necessary care can be found guilty of both medical malpractice and negligence.

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Discussion Comments
By bluedolphin — On Sep 16, 2013

@literally45-- Yes, what you're referring to is intentional vs. unintentional tort. It's more difficult to prove negligence (unintentional tort) in court. Malpractice cases are easier because it's based on a duty defined by law.

By discographer — On Sep 15, 2013

@literally45-- Yes, but who is being negligent is important. When a professional, like a doctor, is negligent, it's also malpractice.

We can all be negligent. If we fail to be as careful as we should be in doing something, we are being negligent. But when a doctor does this, it's not just negligence but also malpractice because professionals whom we rely on for our safety and well-being have an additional obligation that other people don't have. It's their duty to be extra careful and follow rules of conduct.

By literally45 — On Sep 15, 2013

I think intent is an important factor that distinguishes malpractice and negligence. In negligence, there is no intent. Someone who is negligent might forget to do something according to law, but they don't do it intentionally. But someone who is involved in malpractice knows that they are doing something against the law, but does it anyway.

Am I right?

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