Legal definitions can be tricky for
anyone who isn’t a lawyer. Even a word like “malpractice,” which is often heard in the media, can lead people to
wonder exactly “what is malpractice?”
Malpractice is essentially professional negligence on the part of a medical professional. This negligence may take
the form of either act or omission. Whether malpractice is committed by either act or omission, it is care received
by a patient from a medical professional that deviates from the commonly accepted standard of care. This negligence
typically causes either an injury to the patient or may even result in the death of the patient.
Answering the question, “what is
malpractice?” is often at the heart of court cases in which a patient, or the next of kin of a deceased patient,
sues the medical professional for malpractice. The patient, or the patient’s heirs, is the plaintiff in these
cases, whereas the medical professional is the defendant. The defendant is most often a doctor; however, the
medical professional may also be a nurse, therapist, acupuncturist, dentist, or other health care provider. In some
cases, the hospital, care facility, or managed care organization may also be held responsible for the negligence of
In the courtroom, the plaintiff must establish at least four facts in order to successfully sue the medical
professional and the organization which employs them. First, they must prove that a duty was owed to them by the
medical professional or facility. Second, they must show that the duty was breached, meaning that the standard of
care was not met. Third, they must establish that they sustained an injury as a result of this breach. Finally,
they must prove damages, which may be either monetary, emotional, or both.
Most medical professionals acquire
some level of medical malpractice insurance to protect them in the event of a lawsuit. Because of the availability
of insurance coverage, most malpractice cases are settled long before they reach the courtroom. The cost of
prosecuting such cases is exorbitant for all involved parties, so it is typically in the best interests of both the
plaintiff and the defendant to settle out of court.
Establishing precisely “what is malpractice” is a quandary best left to lawyers to resolve. Attorneys who
specialize in such cases can advise clients as to the probable success of their claim before filing a lawsuit and
becoming involved in years of litigation.
Last modified: May 6, 2011