What is the Difference Between Negligence and Malpractice?

One of the questions we’re frequently asked is what is the difference between medical malpractice and what might be called simple negligence. For example, if a person is injured in a hospital or in a nursing home where they’re dropped or they fall or something occurs outside the context of a medical procedure, people want to know whether that’s a malpractice case or an ordinary negligence case. And the difference is, in Michigan, we have to contend with caps on damages in malpractice cases, which are intended to protect the malpractice insurance carriers from exposure in cases where people have been seriously injured.

So one of the questions is how do you separate out whether it’s malpractice or negligence. Well the case in Michigan that decided that issue is called Bryant versus Oakpoint Villa, which I argued back in 2004. And that case says if a person is injured in a situation, in a professional context, like in a doctor patient relationship, or hospital patient, or a nursing home patient relationship, the issue is does it arise out of the exercise of professional judgment? It must be something that requires an expert witness to explain to a jury exactly what happened. For example, there are cases where people are injured when they go to grab a towel bar in a bathroom and the towel bar comes out of the wall because it’s not properly anchored. There are cases where the defense has argued that’s malpractice because it occurs in a healthcare setting. It is not, because was no medical judgment associated with that type of claim. While that may seem like a simple example, another would be if a person is being transferred from a bed to a wheelchair. That is also in most cases ordinary negligence.

What is most assuredly malpractice is anything, most of the time, arising out of a surgical procedure, any type of medical procedure, anything where a licensed healthcare professional is involved in exercising his or her professional judgment. It’s a very important distinction to make and it can result in a tremendous difference for our clients in terms of how much we’re able to recover and what we’re able to do for them. So it’s just an important nuance area in the law in Michigan, and it’s very important to know the difference.

We were recently involved in a case that we just obtained a decision on from the Michigan Supreme court in which a lady was dropped in an intensive care unit of a hospital. The judge at the trial court level, threw the case out. The court of appeals set it aside and said that, no, you had to have a factual basis to make a determination in that area. And the Supreme Court in Michigan basically agreed with that again, which was good because it showed that they are satisfied with the law as it is based on Bryant and not willing to change it to make it more difficult for victims in these types of cases to seek adequate justice.