Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. In tort law, negligence applies to harm caused by carelessness, not intentional harm.
Malpractice is a type of negligence; it is often called "professional negligence". It occurs when a licensed professional (like a doctor, lawyer or accountant) fails to provide services as per the standards set by the governing body ("standard of care"), subsequently causing harm to the plaintiff.
Cases of negligence or malpractice are filed usually in civil courts to get monetary compensation for mental or physical injuries caused.
|Definition||A type of negligence, where a licensed professional fails to provide services as per standards set by the governing body.||Failure to exercise the care that a reasonably prudent person would exercise in like circumstances.|
|Cases filed in||Civil Courts||Civil Courts|
|Criteria for proving the case||Duty, Breach, Causation and Damages||Duty, Breach, Causation and Damages|
|Example||A doctor not performing her duties in accordance with medical standards, resulting in harm being caused to her patient.||A driver causing harm to the passengers due to his carelessness.|
Contents: Malpractice vs Negligence
If a driver does not perform her duty to avoid causing foreseeable injuries, it is considered to be an act of negligence. Similarly, a case of medical malpractice occurs when a doctor fails to abide by the standards of his profession, causing injury in the process to the plaintiff. Malpractice lawsuits are most commonly brought against medical and legal professionals.
edit Proving the case and awarding damages
Cases of negligence or malpractice are generally difficult to prove. To win a favorable judgment, a clear causation relationship must be established between the negligent act and the injury caused. There are four elements to proving negligence or malpractice:
- Duty: The defendant had a duty or an obligation to the plaintiff
- Breach: The defendant breached this duty
- Causation: The harm suffered by the plaintiff was a direct result of this breach of duty
- Damages: The damages being sought are directly related to the harm caused. Damages are of 3 types: special, general and punitive.
- Special damages: Are directly correlated to the injury or harm and have a specific dollar amount that can be established (e.g. via medical bills)
- General damages: Are a little harder to put a dollar figure to e.g. pain and suffering.
- Punitive damages: Are imposed by the court in rare cases when the negligence was gross. This is rare because negligence by its nature is unintentional.
This is an excellent video that explains these concepts:
When proving negligence in cases like car accidents or work injuries, lawyers try to establish that the defendant failed to exercise ordinary discrection that a reasonable person would have taken. In order to prove malpractice, other expert testimony is required to establish that an ordinary professional in the same or similar situation would have acted differently to provide the requisite standard of care, as explained in this video.
edit Further Reading
Some good books available on Amazon.com for further reading:
"Malpractice vs Negligence." Diffen.com. Diffen LLC, n.d. Web. 27 Jul 2014. < http://www.diffen.com/difference/Malpractice_vs_Negligence >