Medical Negligence and Medical Malpractice Are the Same Thing

By Todd N. Hendrickson, Hendrickson Law

After I review someone's medical records, one of the hardest conversations I have is telling a patient or a family that I do not see a malpractice case. A response I hear often goes something like this:

"Okay, maybe it isn't malpractice. But it's still negligence, right?"

I understand why people ask. The two words sound different. "Malpractice" sounds like something shocking, a surgeon operating on the wrong leg. "Negligence" sounds smaller, like an ordinary mistake that anyone could recognize. So it seems natural to think that even if a case falls short of malpractice, there might be a lesser negligence claim waiting underneath it.

There isn't. In Missouri, medical malpractice and medical negligence are two names for the same claim, judged by the same legal standard. If the care does not amount to malpractice, it does not amount to actionable medical negligence either. Here is why.

"Malpractice" Is Just Negligence by a Professional

Malpractice is not a separate or more serious legal wrong. It is simply the word we use for negligence committed by a professional while doing professional work. Doctors, nurses, and hospitals can commit malpractice. So can lawyers and accountants. In every instance, the underlying claim is negligence. Missouri's own statutes use the terms interchangeably. Lawyers, judges, and the legislature move freely between the two terms because they describe the same thing.

There Is Only One Standard

What matters is not the label but the test. When a Missouri jury decides a case against a doctor, the court instructs the jurors on what "negligent" means. Under the Missouri Approved Instruction used in these cases, negligence is the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendant's profession.

That is the standard of care. There is no second, easier test for medical treatment that a patient can fall back on when the standard of care was met. A doctor is measured against other doctors in the same profession, not against what a layperson thinks should have happened.

Missouri law builds this into the case from the very beginning. Within 90 days after filing suit the plaintiff must file an affidavit stating that a legally qualified health care provider has given a written opinion that the defendant failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances, and that this failure directly caused or directly contributed to cause the damages claimed. If that affidavit is not filed, the court must dismiss the case on a defendant's motion. Calling the claim "negligence" instead of "malpractice" does not get around this requirement.

Why "But It's Negligence" Doesn't Open a Second Door

When someone tells me "it's still negligence," they usually mean one of a few things. Each is understandable, and none creates a case on its own:

• The outcome was bad. A poor result, even a devastating one, is not proof that anyone fell below the standard of care. Medicine carries real risk, and the law does not make doctors guarantors of good outcomes.
• A known complication happened. Many procedures carry risks that occur even when everything is done correctly. A complication is not, by itself, a breach.
• The doctor made a judgment call that turned out wrong. A diagnosis that proves mistaken is not negligence unless the doctor failed to use the skill and learning other members of the profession would ordinarily have used in the same circumstances.
• Something was done wrong, but it didn't change the result. Even a clear error must be the cause of the harm. If the outcome would have been the same either way, there is no case.
• The doctor was dismissive or unpleasant. Poor bedside manner is frustrating and sometimes hurtful, but it is not the same as substandard medical care.

In each of these situations, the honest answer is the same: the question is whether the provider failed to meet the standard of care and whether that failure caused the injury. Changing the word from malpractice to negligence does not change the question.

Why I Tell You This Plainly

When I tell someone I do not see a malpractice case, I am not saying their experience doesn't matter, and I am not using a technical word to brush them off. I am telling them that, after measuring the care against the only standard the law recognizes, I do not believe a qualified expert would say the provider fell below it, or that the shortfall caused the harm. In my practice, I move forward only when both the breach of the standard of care and the causation are clear.

I would rather give you an honest answer at the start than take a case that is likely to be dismissed, lost at trial, or drained by years of expense. That said, you are always entitled to a second opinion from another attorney, and you should keep in mind that Missouri's statute of limitations continues to run while you decide.

Talk to a Missouri Medical Malpractice Attorney

If you believe you or a family member was harmed by medical care, I will review your situation personally and give you a straight answer about whether the facts support a claim. Hendrickson Law represents patients and families throughout Missouri and Illinois, and I handle every case myself from start to finish.

Call (314) 721-8833 or visit hendricksonlaw.com for a free consultation.