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Comparison of Medical Malpractice and Negligence

Info: 1981 words (8 pages) Nursing Essay
Published: 22nd Jun 2020

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Tagged: negligence

Medical Malpractice and Negligence


In healthcare, professionals including the physician are usually required to take an oath and swear to handle patient with utmost caution and never to cause them harm.  However, today, the incidence of doctors, nurse breaking these oaths have lately increased in various facilities with a case of malpractices and negligence have become rampant (Popescu, 2015). The inquiry reports recently conducted in various healthcare settings within the united stated have revealed high incidences of death and injuries resulting from medical malpractices and negligence. According to these studies, over 250, 000 people usually die from medical malpractice while others always find themselves with serious injuries mainly attributed to medical negligence. Based on their occurrence, study findings have ranked the incidence of a medical error to be third after heart disease and cancer which are the most causes of death in the country. This explains the reason why over the years, complaints from patients on issues of mistreatments within this health facility have increasingly continued to be reported. The side effects commonly known to result from malpractice and negligence are usually wide as it often encompasses the patient, the healthcare professionals, and the organization. News has it that such incidences usually affect a lot the quality of healthcare that the patients are expected to receive besides, they always interfere with the patient-doctor relationship making it hard for patients to seek medication from such institution. Other studies have also linked the incidence to high healthcare cost, increased litigation cases and reduced job performance among the doctors and other healthcare professionals

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As defined Oyebode (2013), medical negligence usually occur when a physician or a nurse commits an act of omission while providing treatment to a patient. In most instances, such acts tend to be against the expected standard of medical care that patients should receive. On the other hand, medical malpractice is a form of negligence whereby a healthcare professional fails to follow accurately the treatment procedures when attending to patients. In other words, it is an injudicious or wrong patient treatment, which often occurs when the physician through either an act of omission or commission misdiagnoses and makes wrong treatment decisions that lead to medical error. Many times, such actions tend to cause suffering, permanent injury and to extreme cases, they always lead to the death of patients. Therefore, while discussing the legality behind these human errors, this study shall explain the difference between malpractice and negligence and some of the instances might deprive of their licenses based on cases of malpractices and negligence. Besides, the study shall also state the situation when patients’ family members might be allowed raised charges against a healthcare provider based on a negligence case. Lastly, the study shall explain the processes usually followed when handling cases of medical error resulting in death.

The dissimilarity between medical malpractices and a negligence case

Despite the fact that medical malpractice and negligence terms are commonly used interchangeably, they always have clear differences. For example, based on general understanding, medical malpractice is always known to one of the crucial components of negligence. The next difference is that in the case of malpractice, the health provider usually performs or fail to undertake specific actions that often lead to patient suffering either an injury or harm (Oyebode, 2013). Based on the health policies, medical malpractice is mostly considered as a violation of professional discipline doctrines. While, in a medical negligence case, the healthcare provider either knowingly or unknowingly usually find himself or herself committing an action that causes serious harm or injury to the patient receiving treatment. Based on their occurrence, studies show that medical malpractice is usually severe as compared to medical negligence.

Cases of negligence that can deprive a facility its license

Today, the legal concept associated with medical malpractice and negligence has become very wide as it not only applies to health professionals but also the healthcare facilities where they work (Herring, 2014). As commonly known, health facility just like any other entries is usually own privately or by the public. However, with concern to medical negligence and malpractice, these health facilities can directly and vicariously be held culpable for their action and that of their employees. In such instances, the health facility can be compelled to compensate the patients affected. In rare cases, which might be considered to be extreme, the healthcare facility license might be revoked and its operation stopped.

Under medical negligence, there exit numerous cases under which the license of a health facility can be revoked. According to Sohn (2013), a healthcare facility might be forced to stop its operations and its license was withdrawn if several irregularities are spotted and the facility has been reluctant to address them.  For example, during hiring, health facilities are expected to make inquiries about the experience of a health professional, education, license, and training. However, if the hospital fails to consider those requirements then it might be held culpable for negligent retentions and supervision under the doctrine of corporates negligence. In such case, the health facility might lose its operation license as the law take its course.

Besides, health facilities are expected to ensure that the resources needed for quality healthcare delivery are available. However, if it realized that there is a deficit of staff or proper medical facilities to guarantee patient health safety, then such a facility might be held accountable for the harm and injuries created by the shortages (Sohn, 2013). The extreme repercussion is that the healthcare facility might be forced to stop its operation and its license revoked on account that it does not meet the standard measures needed to efficient healthcare service provision. In these cases, the vicarious liability will be applied and the health facility will be compelled to take responsibility for the negligence committed by their employees.

Family member’s rights to sue health provider for negligence cases

Based on legal provisions guiding the nursing practice, any case of negligence where a treatment error is committed by either physician registered nurse or any other health professionals, a lawsuit against the health provider or the health facility might be permitted (Brenner et al., 2012). Under those circumstances, the plaintiff might be required to provided evidence showing that the medical practitioners or provider failed to provide the standard measure of care needed leading to either and patients injury or death. For example, in cases where medical negligence has occurred and a patient has died, the family members to that patients under legal provision has the right to bring a lawsuit against the medical provider for wrongful death. During such cases, the hospital might be held accountable for the negligence of the employees. However, in many of these cases, the facility might not be liable if such a medical malpractices take place within the treatment setting.

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Over the years, there has been a lot of changes with regard to these cases. Today many states have passed a statute that allows the representative or heir to the dead patient the right under the negligent or wrongful act to get compensated by those who committed the death. According to Brenner et al. (2012), this provision was created with a view of ensuring the family members or heirs to the dead get justice through compensation particularly for damages such as loss of financial support, expenses, suffering and pain suffered by the dead and family. However, as required by the law, the plaintiff might be required to prove to the court that the defendant played a significant role in the death of the loved one. When such a case are brought to the court, the statutes associated with medical malpractices will be considered as relevant. That is the plaintiff must be in a position to points out some of the medical malpractices committed by the defendant. These malpractices might be a breach of contract or services rendered to the deceased patient by the healthcare provider. The court decision on such case will be based on the standard of care provided as well as the degree of skill that the healthcare provider is expected to have to provide healthcare or professional services to the patients.

Therefore to establish a case of medical negligence against a medical provider, the patients family or relatives will need, present evidence showing that the duty of health provider to the patient. Besides, the family must equally show that such a duty to care was breached to leading injury or patient’s death (Brenner et al., 2012).  Lastly, they must show that the injury or wrongful death caused by the negligence of the healthcare provider caused some damages to the entire family.

The process involved in wrongful death cases

Cases of wrongful death or negligence related case usually have an outlined processes they must undergo in various courts they are presented. As stated in the study, the evolutions of such a lawsuit usually begin at the pretrial stage where the parties involved are expected to contacts the attorneys to seek alternative solutions to settle the issues. However, if the consensus is not reached then the case will proceed to litigation (Mackey & Liang, 2011). The death case will then go through the trial stage where the plaintiff who is the injured party will be required to file the complaint with evidence that proved his or her claims. The defendants on the other hand who might be in this case the health provider must equally file answers to the issues raised by plaintiff. The jury will provide the verdict and the trial will be over. The post-trial might be allowed if one of the parties feel dissatisfied by the decision of the trial court. In that case, the party who is not satisfied with such ruling might appeal the case at the appellate court. Usually, when such a case favors the plaintiff, the defendant will be compelled to provide compensation for the damages particularly for the tangible loss such as hospital bills, doctor’s bill, and income loss. The intangible loss, on the other hand, might include the pain and suffering caused.


  • Brenner, L. H., Brenner, A. T., Awerbuch, E. J., & Horwitz, D. (2012). Beyond the standard of care: a new model to judge medical negligence. Clinical Orthopaedics and Related Research®470(5), 1357-1364.
  • Herring, J. (2014). Medical law and ethics. Oxford University Press, USA.
  • Mackey, T. K., & Liang, B. A. (2011). The role of practice guidelines in medical malpractice litigation. AMA Journal of Ethics13(1), 36-41.
  • Oyebode, F. (2013). Clinical errors and medical negligence. Medical Principles and Practice22(4), 323-333.
  • Popescu, G. H. (2015). Increased medical malpractice expenditures as the main determinant of growth in health care spending. American Journal of Medical Research2(1), 80-86.
  • Sohn, D. H. (2013). Negligence, genuine error, and litigation. International journal of general medicine6, 49.


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Content relating to: "negligence"

All health professionals strive to run a safe medical practice, however still within the medical system errors are being made. Negligence is defined as ‘a failure to take proper care of something’, and this seems a reasonable concept.

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