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Malpractice and negligence differ in some important ways

Posted by Scott M. Peterson | Jun 13, 2015 | 0 Comments

We are often asked about the difference between negligence and medical malpractice.  Negligence is the failure to act as a reasonably prudent person would act. Medical malpractice is negligence in the practice of medicine – in other words, failing to act as a reasonable physician would act under the circumstances. 

On occasion a physician or hospital can be liable for negligence, rather than medical malpractice. An example of this would be if a physician knocked over a tray of instruments in the ER, and the scalpel landed on the patient's foot, causing a severe wound. In this case the physician was not actually engaged in practicing medicine at the time of the incident. Another example would be if a member of the nursing staff placed a heating pad on a patient's arm, then left and forgot about it, causing a severe burn. This is an example of negligence. 

Malpractice, on the other hand, involves medical care or decisions relating to medical care. The failure of a physician to order a follow up test on a patient exhibiting signs of a serious cancer, for example, is medical malpractice. 

While the distinction may seem small, it is significant. Where negligence lawsuits have a three year statute of limitations, medical malpractice actions only have a two and 1/2 year statute of limitations. In addition there are hurdles that a plaintiff must overcome prior to filing a lawsuit for medical malpractice, including obtaining a review of the case by a medical doctor and submitting what is known as a “certificate of merit,” attesting that a medical professional has reviewed the case and believes it to have merit. 

Whether you believe that you have been the victim of negligence or medical malpractice the best advise is to speak with a qualified attorney, sooner than later, to discuss your options before it is too late.

About the Author

Scott M. Peterson

Scott M. Peterson is the founding partner of D'Orazio Peterson, having left a partnership at a large regional law firm to limit his practice and focus on exclusively representing individuals in a small number of employment and serious injury/medical malpractice matters. Scott's favorite part of practicing law is getting in front of a jury and standing up for an individual against a large company or institution.

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