Differences between Malpractice and Negligence
Contents
Malpractice and negligence
In the legal field, negligence and malpractice are categories of tort law that involve harm caused by a failure to exercise proper care. Negligence is a broad term that applies to any individual who fails to act with the level of care that a "reasonable person" would use in a similar situation. Malpractice is a specific type of negligence, often called professional negligence, that occurs when a licensed professional fails to meet the standard of professional care established by their specific field of practice.
The distinction between the two is primarily based on the identity of the defendant and the nature of the duty owed to the plaintiff. While both concepts involve unintentional harm, they are handled differently within the court system regarding evidence and testimony.
Comparison of negligence and malpractice
| Category | Negligence | Malpractice |
|---|---|---|
| Applicable parties | Any individual or entity | Licensed professionals (doctors, lawyers, etc.) |
| Standard of care | Reasonable person standard | Professional standard of care |
| Expert testimony | Rarely required | Generally mandatory |
| Typical context | Everyday accidents (e.g., car crashes) | Professional services (e.g., surgery) |
| Duty of care | Owed to the general public | Arises from a professional relationship |
| Proof of breach | Based on common knowledge | Based on specialized peer standards |
Standard of care
The legal system evaluates negligence using the reasonable person standard. This objective test asks whether a person of ordinary prudence would have acted differently under the same circumstances. For example, a property owner who fails to clear ice from a public walkway may be found negligent because a reasonable person would recognize the slip hazard.
Malpractice cases apply a higher standard. The defendant is not compared to the average citizen but to a competent peer in their profession. In medical malpractice, a physician's actions are measured against the skills and knowledge commonly possessed by other members of the medical profession in good standing. This standard accounts for specialized training and the complexities of professional judgment.
Role of expert testimony
A major procedural difference between these two claims is the requirement for expert witnesses. In a general negligence lawsuit, the jury can often rely on their own life experiences to determine if a defendant was careless. Expert testimony is only necessary if the facts are outside the common knowledge of a layperson.
In malpractice litigation, expert testimony is almost always required to establish the standard of care. Because jurors do not typically have the training to know how a specific surgical procedure should be performed or how a tax attorney should structure a complex filing, the plaintiff must hire an expert in that same field to explain how the defendant's conduct deviated from accepted professional norms.
Legal elements of a claim
To succeed in either a negligence or malpractice claim, a plaintiff must prove four specific elements:
1. Duty: The defendant had a legal obligation to the plaintiff. 2. Breach: The defendant failed to meet the required standard of care. 3. Causation: The defendant's breach directly caused the plaintiff's injury. 4. Damages: The plaintiff suffered actual harm, such as physical injury or financial loss.
In malpractice, the element of duty is strictly tied to a professional-client or doctor-patient relationship. Without this formal relationship, a malpractice claim cannot be sustained, though a general negligence claim may still be possible depending on the facts of the case.
References
- Restatement (Second) of Torts § 282 (1965).
- Keeton, W. P., Dobbs, D. B., Keeton, R. E., & Owen, D. G. (1984). Prosser and Keeton on Torts. West Publishing Co.
- American Bar Association. (2023). "Standards of Care in Professional Liability".
- Furrow, B. (2018). Health Law: Cases, Materials and Problems. West Academic Publishing.
