If you’re considering filing a personal injury lawsuit in Illinois, it might be helpful to understand the differences between malpractice and negligence and how they are determined by law. These terms go hand-in-hand, so the notion of “versus” isn’t quite accurate since they are not two different sides of the same coin.
That being said, let’s dive into what each of these terms means in a legal sense, how you can prove each, and what you should consider when filing a personal injury suit.
What’s the Difference Between Malpractice and Negligence?
As stated above, these two legal theories are closely related and one (negligence) often leads to the other (malpractice). The differences lie mostly in their scope, how they are determined, and their legal complexity. Let’s explore their differences, with examples of each.
What is Negligence?
Negligence is the neglect of everyday standards of care. It’s when somebody does not perform their duties or actions as a reasonably careful person should. This can happen in professional settings such as a doctor’s office, or even in relatively mundane settings such as driving in traffic. Essentially, it’s when safety ārulesā are ignored and it leads to the preventable injury (or death) of another person.
For instance, if a vehicle runs a red light and causes a collision, that driver is considered to be negligent for not following the rules of the road. Negligent behavior can happen in just about any setting at any time. For example, if a dog bites a person and is unprovoked, the dogās owner is negligent and could face a lawsuit.
What is Malpractice?
Malpractice falls under the larger umbrella of negligence and is mostly used to describe violations of the standard of care within a professional setting, such as in doctorsā offices and hospitals. For example, medical malpractice can occur if a doctor misdiagnoses an illness, doesn’t clean instruments properly, administers the wrong medication, and more. Malpractice suits require expert testimony to establish what the standard of care is and how it was violated. On the other hand, common negligence (like in a car crash case) can be proven without expert testimony, such as through photos, video, lay witnesses and police reports.
However, the legal definition of malpractice extends far beyond just the medical field. If a lawyer misses paperwork deadlines (known as āstatutes of limitationsā) or doesn’t present critical evidence when it is required, a claim for legal malpractice can occur. If your accountant negligently mismanages your funds or engages fraudulent behavior, accounting malpractice has likely occurred.
How to Prove Negligence in Illinois
There are four main elements that must be established in order to maximize the success of a negligence lawsuit. We’ll use the example of running a red light to distinguish each:
- Duty of care: The duty all of us have to act reasonably under the same or similar circumstances. In the case of a driver running a red light, we already know that the duty of care is to obey traffic laws.
- Breach of the duty of care: A person fails to follow the standard of care for a reasonably careful driver. In our example, this is the act of running the red light.
- Causation: We must then prove that the breach of the duty of care was a cause of the plaintiff’s injury or death. So, in our example, running the red light directly caused a traffic collision and injuries.
- Damages: The plaintiff must then prove that he/she suffered emotional or bodily harm as a result of the defendantās negligence. This is most often proven through medical records and bills, witness testimony, police reports, and more.Ā
How to Prove Malpractice in Illinois
Malpractice, on the other hand, is a bit more complex. Let’s go over how to prove it while using a real-life example of medical malpractice from one of my recent cases.
- Professional duty: First, we need to establish that there is indeed a standard of care to which the professional must adhere. In medical settings, doctors and nurses have standards in the course of administering care. In our example, medical staff are required to properly sterilize and sanitize the instruments used in an operation.
- Breach of that duty: The doctor(s)/nurse(s) failed to meet the standards of care. An expert witness is required to testify as to what those standards are and how the defendant(s) violated them. With my recent client, the hospital failed to properly sterilize the instruments between surgeries, which was a breach of standard of care.
- Causation: The breach of care was the direct cause of the plaintiff’s injury or death. In our case, it was found that one of the tainted instruments was an HIV- and syphilis-infected needle. Our client suffered physical and emotional injuries, including severe PTSD,Ā as a result of the doctorās and nursesā violations of the standard of care.
- Damages: The plaintiff must prove that he/she suffered bodily or emotional harm as a result. My client had the medical records and bills to establish that she was suffering from PTSD and would require mental health therapy for the rest of her life.
Brian Lewis Can Help You Prove Negligence or Malpractice
If you’re considering a personal injury lawsuit, make sure you contact an attorney who is experienced with these matters. Throughout my career, I’ve helped hundreds of people just like you achieve justice and move onto the road to recovery. I’ll gather evidence on your behalf, hire the experts to testify, file all the necessary paperwork, and fight the insurance companies for you.
You’ve been through enough already. Let me take it from here.