Is there a difference between medical malpractice and negligence?

PUBLISHED 20 Jan 2020

All Australian medical professionals owe what the law refers to as a duty of care. This means that persons providing medical treatment have a legal obligation to not cause reasonably foreseeable harm. In the case that such foreseeable harm is caused to the person receiving the treatment, the provider may be liable due to “negligence in medical malpractice”.

What is negligence?

Negligence is a failure to exercise the care that another in the same professional would prudently exercise if faced with the same set of circumstances. Harm caused by negligence is considered to be due to carelessness, rather than a specific intent or determination to cause harm.

Negligence can be committed by any professional. For example, a driver of public transport could cause an accident through negligence. The harm caused to persons involved in the accident could be charged under the law, assuming it can be proven that most other drivers in the same circumstance would have been more prudent and avoided an accident.

What is malpractice?

Malpractice is often called “professional negligence”. If a licensed professional (such as a doctor, lawyer, or accountant) fails to provide standard of care (services as laid out under standards set by the profession’s governing body), that subsequently causes harm to the plaintiff, this form of negligence may be known as malpractice.

Medical malpractice is specifically used in reference to medical professionals who have committed acts of negligence. Claims of medical malpractice are typically filed in civil courts, to acquire some form of monetary compensation for mental or physical injuries caused by the professional’s negligence.

How is medical malpractice proven?

If a doctor fails to abide by the standards of his profession, thereby causing injury to the plaintiff (or a plaintiff’s minor child or elder), a malpractice lawsuits may be brought. However, cases of negligence or malpractice can be difficult to prove. Four elements must be proven to win a favorable judgment:

  • Duty: It must be clearly shown that the defendant had a duty or an obligation.
  • Breach: It must be proven that the defendant breached this duty.
  • Causation: A causal link must be made between the harm suffered and the breach of duty.
  • Damages: The damages being sought must be directly related to the harm caused

Damages are awarded based on three definitions: special (directly related to costs arising from the harm caused), general (related to emotional pain or suffering), or, in special cases, punitive (if the negligence was extreme, or gross in nature.)

In order to prove malpractice, other expert testimony is typically required. The goal is to establish that a similar professional in the same or similar situation would have acted differently, in order to provide the standard of care demanded.

If you need more information on medical malpractice, or think you have a case, contact Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.