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Though healthcare providers should work to improve the lives of their patients, sometimes medical treatments go awry and patients can suffer serious consequences. When these consequences occur because medical providers failed to provide appropriate care, patients may be able to recover compensation for their injuries. Understanding medical malpractice vs negligence and how it may impact your case can increase your chance of recovering compensation.

Definition of Medical Malpractice vs Negligence

All medical treatments come with some level of risk. Even taking an aspirin for a headache could result in a poor outcome. However, when a healthcare provider increases the risk due to certain actions or inactions, medical malpractice or negligence may occur. The primary differences between malpractice and negligence are intent and awareness.


Negligence is a legal concept that involves a failure by a person or institution to exercise the level of care that a reasonably prudent person in the same circumstances would exercise. For people or institutions to be negligent, they must have breached a legal duty that they owed to the injured party.

Additionally, that breach must have caused injury to the other party and that injury must have resulted in damages. Negligence can be difficult to prove because the elements are often subjective.

Medical Negligence

Medical negligence happens when a medical professional accidentally harms a patient through an action or inaction that violates an accepted standard of care. Medical negligence involves the same elements as general negligence but is specific to actions or inactions executed as part of a medical provider’s professional duties.

Medical Malpractice

Medical malpractice is a type of medical negligence where a healthcare professional knew or should have known the potential consequences of an action or inaction that resulted in an injury to a patient. Medical malpractice often involves not following established guidelines or protocols.

In some cases, a medical mistake could be either negligence or malpractice, and the determination may depend on the degree to which the action or inaction varied from the accepted standard of care. The more egregious a medical mistake is, the more likely it is to be malpractice.

Examples of Medical Malpractice vs Negligence

Examples of medical mistakes that could be negligence or malpractice include:

  • Surgical errors
  • Missed or incorrect diagnosis
  • Birth injuries
  • Emergency room mistakes
  • Negligent administration or monitoring of anesthesia

A poor medical outcome is not enough to establish that either negligence or malpractice occurred. As an example, consider a patient with an infection for which the established treatment is a course of antibiotics.

The healthcare provider asks the patient about allergies, reviews the patient’s medical history and other medications, and does not find any concerns. The provider prescribes the medication and the patient takes it and has a severe allergic reaction.

In this example, while the patient suffered an injury due to the medical care provided, because the provider followed the established protocols, it is probably not a case of negligence or malpractice.

However, what if the provider misread the patient’s chart indicating a known allergy to the antibiotic or accidentally prescribed the wrong antibiotic? In this case, the provider may be guilty of negligence.

What if the provider was in a hurry and decided to take the patient’s word for it and did not review the medical history at all? This might rise to the level of malpractice because the provider knew the potential consequences and failed to adhere to the established protocols.

Determining When an Incident Is Medical Malpractice vs Negligence

When a mistake is malpractice versus negligence is not always clear-cut. Determining which applies involves answering a series of questions:

  • What led to the mistake?
  • Did the healthcare provider know what the possible consequences were before the action or inaction?
  • Are there established protocols and did the medical provider ignore or fail to comply with them?
  • Was the medical provider trying to provide the best possible treatment for the patient?
  • Could any similarly qualified medical professional have made the same mistake?

An experienced medical malpractice attorney can help you with the answers to these questions.

Steps To Take After Experiencing Medical Malpractice or Negligence

If you are dealing with the aftermath of medical negligence or malpractice, you may be coping with serious injuries or the loss of a loved one and feel unsure of what to do. Taking these steps can help.

Talk to Your Medical Team

You may not understand what went wrong during your or your loved one’s medical procedure. Talking to your medical team is a good place to start. Your medical providers can explain to you what happened and why it happened.

Many healthcare providers have teams that specifically assist patients who believe a medical mistake happened. This team can help you communicate with your medical providers.

Contact the Arizona Medical Board

The Arizona Medical Board is responsible for protecting the safety of Arizona residents through the licensing, regulation, and education of medical providers. Filing a complaint with the Board can help your case in several ways.

First, it serves as documentation of the issue. Second, the Board may undertake an investigation, and the results of that investigation could help your case if the Board finds the provider did something wrong.

You can also investigate whether the provider has a history of complaints of negligence or malpractice. The judge or jury may be more likely to decide in your favor if the provider has a track record of making mistakes or not following established protocols.

Consult With a Malpractice Lawyer

Medical malpractice and negligence cases can be complex and difficult to prove. Most people do not have the necessary legal or medical knowledge or the resources to pursue a medical malpractice or negligence case on their own. A medical malpractice attorney in Phoenix can help you understand whether you have a medical malpractice or negligence case, estimate how much your case may be worth, and gather the evidence needed to convince a judge or jury.

Suing for Medical Negligence or Malpractice

While most healthcare providers have medical malpractice insurance, due to the financial risk and potential consequences to their reputation and career, they usually will not settle a negligence or malpractice claim without a fight. In some cases, you may need to file a lawsuit to recover compensation.

Who Can You Sue for Medical Malpractice?

More than one party may share responsibility for your injury. Generally, you can sue any party who has any share of the fault, including the medical provider and the practice or hospital the provider worked for. However, Arizona law provides immunity in some circumstances, such as a provider who refuses to perform a procedure in violation of their conscience, as long as that provider makes the violation known promptly and transfers the patient to another provider who is willing to provide the care.

When Can You Sue?

You must have an injury to have a valid lawsuit. If the provider made a mistake but that mistake did not cause an injury, you do not have a case. However, simply having an injury due to a medical procedure is not enough.

That injury must have occurred because of negligence or malpractice. Additionally, you must have damages, such as medical bills, as a result of the injury. To prevent frivolous lawsuits, Arizona law requires you to file an affidavit of merit from a qualified healthcare professional within 60 days of your lawsuit.

Arizona law gives you two years from the date the negligence or malpractice occurred to file a lawsuit. However, if you were under the age of 18 or mentally disabled or it took longer than two years to discover the negligence or malpractice, you may have additional time to file.

What Types of Compensation Can You Get in a Medical Malpractice Claim?

Most negligence and malpractice settlements include special damages and general damages. Some also include punitive damages. Unlike many states, Arizona does not limit the total amount of damages you can collect.

Special Damages

Special damages are expenses that come with a specific dollar amount. Examples of special damages include:

  • Medical bills
  • Physical therapy
  • Prescription medication
  • At-home nursing or caretaking
  • Transportation to medical appointments

If your injuries caused you to miss work or limited your ability to earn future wages, you may receive compensation for lost income or reduced earning capacity. Additionally, if you have expenses due to plans you had to change, such as canceling a non-refundable flight, you may receive compensation.

General Damages

General damages do not have a specific dollar amount attached. Examples of general damages include:

  • Pain and suffering
  • Reduced quality of life
  • Loss of enjoyment of life
  • Loss of consortium or companionship
  • Inconvenience

Because courts can only award monetary compensation, they must estimate the dollar value of these non-economic damages.

Punitive Damages

Courts sometimes award punitive damages to punish the plaintiff for wrongdoing and deter future wrongdoing. Punitive awards do not depend on the actual damages of the defendant. Courts usually award punitive damages in cases where the plaintiff acted with malicious intent or committed gross negligence or a crime.

Wrongful Death

When medical malpractice or negligence causes a patient to die, a family member, such as a spouse or child, may be able to sue for wrongful death. Wrongful death damages can include medical expenses and pain and suffering experienced by the person who died and damages incurred by the loved one, such as funeral and burial costs, loss of companionship, loss of income, and emotional distress.

Proving Medical Negligence or Malpractice

Most medical professionals are not going to admit that they did something wrong. Instead, you must prove all of the elements of negligence or malpractice.

Duty of Care

The first thing to prove is that the healthcare provider owed you a duty of care. To do this, you must demonstrate that you had an ongoing, voluntary relationship with the provider at the time the alleged negligence or malpractice happened. You can usually establish this by providing your medical records.

Breach of Duty

Next, you must prove the provider breached the duty of care owed to you in a way that lead to your injury. This usually depends on proving that the provider did not exercise the level of care a similarly skilled provider would have given the same circumstances and available knowledge. You will probably need expert testimony from a licensed medical professional who practices the same specialty as the provider you are suing to prove this.


You must then prove that the breach of duty caused your injury. Proving that the provider’s actions or inactions caused your injury usually involves a mixture of medical records and expert testimony.


Finally, you must prove that the injuries that the negligence or malpractice caused resulted in damages. Special damages are often easier to prove because you can provide documentation, such as medical bills, to substantiate your expenses.

It may be more difficult to prove lost wages or earning capacity. While you can prove the dollar amount through wage statements, you may need expert testimony to prove that your injuries prevented you from working or reduced your ability to work in the future.

General damages are the most difficult to prove because they involve intangible harms, such as physical and emotional pain. The defendant may accuse you of exaggerating your general damages to get a larger settlement.

Keeping thorough records of your symptoms, pain level, and emotional distress can help you prove your case. You may also need the testimony of mental health professionals, therapists, friends, family members, colleagues, and other people who know you to prove your damages.

Get Help With Medical Malpractice and Negligence

Medical malpractice and negligence cases involve many complex elements. The team at Sargon Law Group has experience investigating complex cases and holding healthcare providers accountable.

We handle claims throughout Arizona and always put our clients first. We know that malpractice cases can be expensive and difficult to win. Our Phoenix personal injury lawyers have the resources, knowledge, and experience you need to get the compensation you deserve. Whether you need help determining if your case involves medical malpractice vs negligence or you are ready to file a lawsuit, contact us online to schedule a free consultation.