Malpractice vs. Negligence

Tuesday, November 14, 2023

Malpractice vs. Negligence

Written by Malman Law, reviewed by Steve J. Malman.

It is not uncommon to hear the terms “malpractice” and “negligence” in legal and ethical discussions. They can both have similar outcomes, such as severe injury and sometimes death.

However, these words Malpractice vs. Negligence may create confusion as they may be used interchangeably. It’s crucial to understand that these terms are interconnected but hold distinct meanings.

Our personal injury firm has handled many cases involving medical malpractice. We understand the issues surrounding these matters, and we can ensure justice is served for injured victims seeking compensation. Below, we delve into the two terms to shed light on the legal implications of malpractice and negligence.


Negligence is a term deeply embedded in legal language. It refers to someone falling short of exercising reasonable care and causing injuries to others. This concept is rooted in tort law and is used to hold individuals accountable for failing to act responsibly.

At its core, negligence denotes a breach of the duty to exercise reasonable care in a given situation. This duty arises from a societal expectation that individuals will conduct themselves with a level of care commensurate with the circumstances. When this standard is not met, and harm results from the breach, the legal concept of negligence comes into play.

The crux of negligence lies in the failure to foresee and prevent reasonably foreseeable harm. It is not merely an absence of care but a deviation from the expected standard of conduct. Professionals who are entrusted with specific responsibilities due to their expertise are held to a higher standard of care. This elevated expectation acknowledges their specialized knowledge and training, emphasizing their duty to exercise prudence in their actions.

The legal ramifications of negligence often involve seeking compensation for damages incurred by the affected party. For example, a healthcare professional fails to diagnose a patient’s condition accurately. The negligence lies in the failure to exercise the reasonable care expected of a medical professional under similar circumstances. The victims may file a lawsuit to seek compensation for the resulting harm.


Malpractice generally refers to a dereliction of duty in the professional arena that causes injury, loss, or damage. This comparison goes beyond a mere lapse in judgment, but it delves into the violation of the trust and standards expected in various specialized fields.

Malpractice is not just a simple error but a serious departure from the accepted standards of conduct within a particular profession. It implies a breach of the duty owed to those who rely on the expertise and competence of a professional.

Licensed professionals are entrusted with a duty to act in the best interests of those they serve. For example, let’s consider a scenario where a patient is scheduled for a surgical procedure that requires general anesthesia. However, the anesthesiologist neglects to review the patient’s medical history thoroughly. As a result, the patient experiences a severe allergic reaction to the anesthesia, leading to a sudden cardiac arrest during the procedure.

In the above case, failure to identify and address the patient’s allergic tendencies results in a life-threatening situation that could have been prevented with a more thorough preoperative assessment. This constitutes medical malpractice, and legal consequences may follow when the victim files a personal injury lawsuit to seek compensation for the harm.

Professional Vs. Non-Professional

In professional settings, individuals are expected to adhere to a higher standard of conduct due to their specialized knowledge, education, and training in a particular field. Professions demand a commitment to ethical standards and a duty of care toward clients, patients, or the public. Professionals are often governed by codes of ethics that outline expected behaviors, ensuring integrity and competence.

Professional conduct involves a level of accountability beyond personal interactions. To determine malpractice, the courts will determine whether the plaintiff holds professional status. For example, the court cannot sue a cook for medical malpractice that occurred in a medical clinic.

The ability to foresee potential consequences is key for professionals. A medical professional, for instance, should recognize that rushing through a procedure could result in errors and complications that could put the patient at risk.

Levels of Malpractice

Malpractice is not a one-size-fits-all concept, but it involves a wide range of wrongdoing that can vary in severity and impact. Your attorney will determine the level of malpractice for the case in question for appropriate legal actions.

  • Gross negligence: Represents a higher degree of carelessness or recklessness in comparison to regular negligence. Gross negligence often leads to more severe consequences and may result in heightened legal repercussions.
  • Intentional misconduct: This involves purposeful actions or decisions that deviate from ethical and professional standards. This is a willful violation of the duty owed, with the intent to cause harm or gain an unfair advantage.
  • Criminal malpractice: In some cases, malpractice can rise to the level of actions that not only breach professional standards but also violate criminal laws. This includes fraud and other criminal acts committed in the course of professional duties.
  • Systemic or institutional malpractice: Malpractice can also manifest at an institutional or systemic level. This occurs when policies, procedures, or cultures within an organization contribute to substandard care, which puts individuals at risk.
  • Aggravated or aggressive malpractice: This category involves malpractice that exhibits a heightened level of aggression, hostility, or deliberate harm. It may go beyond typical instances of negligence or intentional misconduct, causing an elevated risk to those under the professional’s care.

How to File a Malpractice Suit

Unfortunately, malpractice continues to affect people across various settings. Research indicates that over 250,000 die each year due to medical errors.

Initiating a malpractice lawsuit may be challenging due to various considerations that come into play. Commence the process by seeking guidance from a malpractice attorney. They will scrutinize the specifics of your case to evaluate its validity and guide you through the legal intricacies.

Before filing a malpractice case, you will need to file a notice of intent. This notice notifies the healthcare provider of the intent to file a lawsuit and opens the door for potential settlement discussions.

In malpractice cases, expert witness testimony is key. Your attorney will identify and engage a qualified medical expert to help in establishing the standard of care and causation.

Your attorney will officially file the complaint, outlining the malpractice allegations, the standard of care, causation, and the damages incurred. The defendant will be served with the complaint, which marks the commencement of the legal proceedings.

Both parties will engage in the discovery process that involves exchanging pertinent information and evidence. This might involve depositions, interrogatories, and the acquisition of additional expert opinions.

Prior to trial, opportunities for mediation or settlement discussions may arise. Your attorney will engage in negotiations to reach a resolution that compensates you for the harm suffered.

If a settlement proves challenging, the case proceeds to trial, where an expert witness will present testimony to substantiate your claims. Then, the court will render a verdict based on the presented evidence. If the case is successful, you will be awarded compensation for damages such as:

  • Additional medical expenses
  • Lost wages
  • Pain and suffering
  • Wrongful death
  • Disability benefits

Examples of Malpractices

Malpractice can occur in various professions and contexts. Here are examples of malpractices:

  • Legal malpractice: Attorneys can be guilty of malpractice if they fail to provide competent and diligent representation, leading to harm or adverse outcomes for their clients.
  • Dental malpractice: This is still medical malpractice but specific to dental care, which involves negligent dental procedures, misdiagnosis, and failure to obtain informed consent, among others.
  • Counseling or therapy malpractice: Mental health professionals may be accused of malpractice if they provide negligent or harmful therapy, fail to maintain appropriate boundaries or breach confidentiality.
  • Nursing home negligence: Nursing home malpractice may involve inadequate care, neglect, or abuse of residents. This could include issues like untreated bedsores, malnutrition, or physical and emotional mistreatment.
  • Medication errors: Administration of incorrect medications, incorrect dosages, failure to consider a patient’s allergies, etc, can result in serious harm.
  • Birth injuries: Malpractice during childbirth can result in injuries to both the newborn and the mother.

These examples mean that malpractice can extend across various professions. Each context of malpractice has its own set of standards and expectations. It’s in your best interest to hire a malpractice attorney to help navigate your unique malpractice case.

Contact a Chicago Malpractice Attorney For a Free Case Evaluation

If you think you have a case that involves negligence or malpractice, you need to act with speed to improve your chances of successful recovery. Don’t wait until the last minute to approach a law firm.

At Malman Law, we encourage malpractice victims to report their cases to a malpractice attorney immediately after discovering that they were injured. This is due to the fact that the case involves a complicated burden of proof, which may take some time. If you are seeking legal assistance for your case, contact us for a free consultation.

Steve Malman

Malman Law’s founder Attorney Steven Malman has over 30 years of experience handling personal injury, nursing home, medical malpractice, truck accidents, car accidents, premises liability, construction, and workers’ compensation cases in Chicago, IL.

Years of experience: +30 years
Justia Profile: Steve Malman
Illinois Registration Status: Active and authorized to practice law—Last Registered Year: 2024

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