Negligence VS Malpractice: Understanding the Key Differences in Personal Injury Law

Cassidy Loutos
Feb 12
4 min read

In personal injury law, there are two types of cases that are extremely similar, but they differ in key ways that can change how the case is approached and the potential outcome. These are negligence and malpractice personal injury cases.

You’ve likely heard these terms before, and they can seem interchangeable, but it is important to know the difference.

We’re going to go over those key differences and why they’re so important.

What is Negligence in Personal Injury Law?

First, negligence is the root of both of these types of cases. So, it’s crucial to understand what it means before diving into the rest.

Negligence is an injury caused by the offending party's failure to meet an expected standard of care.

For example, let’s say you were delivering mail, and the owner of the home had a rotting porch step leading to their mailbox. When you step onto the stairs, you fall through the porch and suffer a broken bone and lacerations. That’s a type of negligence.

Negligence can also be as simple as a driver not using a turn signal before a wreck occurs. However, the most popular example you’ve probably heard about is when a company fails to clean up a spill, and a customer slips on it. The company neglected to provide clean and hazard-free walkways for customers in that example.

What is Malpractice in Personal Injury Law?

Malpractice is extremely similar to neglect. In fact, it’s a type of neglect.

However, malpractice is the term for when a professional fails to meet the appropriate standard of care, and an injury or loss is sustained.

A good example of this is when you go to the hospital for emergency care, the nurse doesn’t pay attention when administering medicine, and they accidentally give you the wrong medicine. Now, you’re suffering a new injury, and it’s entirely because a medical professional didn’t take the appropriate measures to ensure they did their job correctly. That’s not a negligence case. That’s a malpractice case.

A similar negligence case would be you asking the waitress about any nuts used in the kitchen and nut-free foods you might order, the waitress telling you they don’t use any nuts, and then you having a reaction due to nuts being in your dish. The nurse isn’t a trained care professional in the same way the doctor is.

Which Professions Count as Malpractice?

In general, malpractice cases involve two types of highly trained professionals. There’s medical malpractice, and then there’s legal malpractice.

Medical malpractice is the most varied type of case. Doctors, nurses, psychologists, anesthesiologists, and even pharmacists and every other type of medical professional can cause a malpractice case through negligence. It’s not just ER doctors who are at risk for malpractice claims.

The legal field is a little more straightforward. If a lawyer doesn’t provide the standard level of care, it’s a legal malpractice case. That includes any type of lawyer.

Is Malpractice Intentional?

Malpractice cases can be intentional or completely accidental. It’s important to know this because we tend to be a little more sympathetic when people make genuine mistakes with somewhat understandable reasoning. Also, it’s a common misconception that malpractice or professional negligence has to be accidental. It can be an intentionally harmful action. In either event, it is still a malpractice case, and you deserve justice.

Typically, malpractice is an accidental situation, such as a doctor making a misdiagnosis. It stems from negligence in one way or another, and the negligence might have been a minor mistake with big consequences. The nurse example we provided earlier is a good example of that.

An intentional malpractice case would be something like a doctor touching a patient inappropriately and without consent, intentionally using inappropriate methods of treatment to inflict harm, etc. It’s rare, but it happens.

Why is This Difference Important to Know?

The difference between medical malpractice and negligence seems very minimal. One is for general cases, and one is for a relatively limited group of professionals. In both cases, someone neglected to provide a standard level of care, usually by accident, and you got hurt. Why is it important to understand both terms if they’re mostly the same?

The simplest answer is that the legal field is heavily reliant on wording. While it’s unlikely that you care that your injury was caused by a professional or a random person, the law, insurance companies, and more are all going to interact with the case and a potential case differently because of that wording.

Here are some of the key ways it can affect you.

1: Navigating the Courtroom

The way you navigate the courtroom will be dramatically changed by the type of case you have. You can’t go into a courtroom and refer to the wrong type of personal injury.

There are also completely different expectations that you’ll have for either type of defendant in the case. A highly trained professional approaches the situation differently than a small business owner who didn’t mop his floor one day. The two require different strategies.

2: The Types of Experts Available

Expert witnesses’ testimonies are extremely important in all kinds of personal injury cases. Since the situation and the defendant are different in negligence and malpractice cases, the types of experts you need on your team will vary.

There are also various rules that expert witnesses have to follow, and they might limit your options when you’re dealing with professionals in the same field.

3: Insurance Requirements

If you’re trying to protect yourself from the potential for a malpractice or negligence case being claimed against you, knowing the difference will help you get the right policy, and it will ensure that you get adequate protection later on.

Get Help with Your Personal Injury Case

When you’ve been injured due to negligence or malpractice, you deserve strong legal support you can rely on. Loutos Law PLLC is committed to providing the representation you need to pursue your claim with confidence.