What Is the Difference Between Medical Malpractice and Negligence?

Everyone makes mistakes, including doctors. However, if a doctor’s mistake causes you harm or injury, especially if that mistake could have been prevented, their mistake could rise to the level of medical negligence or even malpractice. If it does, you could be entitled to compensation from the negligent healthcare provider.

The attorneys at Kendall Law Firm have been helping victims of medical negligence and medical malpractice seek justice from their healthcare providers for more than 30 years. Our team has the skills, knowledge, and resources you can depend on to guide you through the legal process and determine which path is most suitable to your needs.

You deserve rigorous, effective legal representation when your health is on the line. That’s why you need the attorneys at Kendall Law Firm. Contact us today for a free consultation.

Medical Negligence Definition

An act of medical negligence is a mistake by a health care provider that causes harm or injury to their patient. The error is accidental and unintentional. A health care provider can be a doctor, nurse, surgeon, anesthesiologist, hospital, medical clinic, or other health care provider.

Examples of medical negligence may include:

• Accidentally prescribing a medication that interacts poorly with another medication
• Accidentally giving the wrong dose of a medication
• Accidentally nicking a blood vessel during surgery
• Accidentally puncturing an organ during surgery
• Accidentally misdiagnosing a patient

What Is Medical Malpractice?

• 8.01-581.1 of the Virginia Codedefines medical malpractice as “any tort action… for personal injuries or wrongful death, based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient.”

Examples of Medical Malpractice

Here are some hypothetical examples of medical malpractice:

• Failing to diagnose cancer or other diseases because of unperformed standard diagnostic tests
• Leaving a foreign object inside a patient in a rush to complete surgery
• Operating on the wrong side of the patient’s body due to a breach in procedures
• Prescribing the wrong medication after misreading laboratory results
• Overprescribing medication despite known risks of addiction or death

It is important to remember that these scenarios are hypotheticals. Knowing whether a case is a medical malpractice case or something else can be challenging without consulting an experienced medical malpractice attorney.

What Is the Difference Between Medical Malpractice and Medical Negligence?

It can be difficult to discern the difference between medical malpractice vs negligence. In most situations, medical negligence provides the basis of a medical malpractice claim. When health care providers are negligent, they deviate from the accepted standard of care that another health care provider with the same background would have exhibited under similar circumstances. This is medical malpractice.

However, medical malpractice can also involve reckless or intentional conduct, not just negligence. For example, a health care provider could recklessly operate on a patient while under the influence of drugs or alcohol or intentionally harm a patient during a procedure. Therefore, medical malpractice can be due to a health care provider’s negligent, reckless, or intentional conduct.

What Is the Virginia Statute of Limitations for a Medical Malpractice Lawsuit?

A statute of limitations is a law that sets a deadline for filing a lawsuit against another person or entity. Under Virginia law, the statute of limitations for filing a medical malpractice lawsuit is two years from when the alleged medical malpractice occurred. The deadline for filing a medical negligence lawsuit is also two years.

There are some exceptions to the two-year deadline for medical malpractice lawsuits, including:

• Foreign object– In cases where a foreign object is left inside the patient’s body, the statute of limitations is one year from the date the object is discovered or reasonably should have been discovered.
• Fraud or concealment– If the patient could not discover their injury due to fraud, concealment, or intentional misrepresentation, the statute of limitations is extended to one year from the date of discovery.
• Failure to diagnose cancer– In cases where a health care provider failed to diagnose a malignant tumor, cancer, or intracranial, intraspinal, or spinal schwannoma, the statute of limitations is one year from the date that the diagnosis is communicated to the patient. The details of this law have changed over time, so you should consult with a medical malpractice attorney about the exact statute of limitations in this scenario.

Despite these exceptions, no lawsuit can be filed ten years after the alleged malpractice occurred. This is known as a statute of repose.

Under Virginia law, there are also situations where the statute of limitations (including the 10-year statute of repose) would toll or pause. For example, if the person entitled to sue becomes incapacitated, the statute of limitations would pause while they are incapacitated and not represented by a conservator or guardian. Your medical negligence attorney can explain the deadline that applies to your case.

What to Do If You Experience Medical Negligence or Malpractice

You should take the following steps if you believe you were the victim of medical negligence or malpractice:

• Get a second opinion– If you think you have suffered an injury due to medical malpractice, you should seek out a different health care provider. Not only is it essential to your health to get proper medical care for your underlying condition, but a second opinion is critical in establishing that the initial health care was negligent.
• Keep all medical records– Retain all medical records related to the case, including bills, pre- and post-operative instructions, communications with the health care provider, and laboratory or diagnostic test results. These records will be critical evidence in a medical negligence or malpractice lawsuit.
• Keep a pain journal– While medical records detail the objective harm you have suffered, you deserve to be compensated for the subjective pain and suffering you have experienced as well. Therefore, you should keep a daily pain journal describing how you feel in meticulous detail.
• Be careful about communications– Any compensation you get through a medical negligence or malpractice claim will be paid out by the healthcare professional’s malpractice insurance provider. Insurance companies want to pay out as little as possible, and they’ll look for any way to challenge your claims. Your words could be used against you in a medical negligence or malpractice case. Let your attorney communicate with the provider and their insurers on your behalf. Furthermore, be careful what you say on social media. Those posts can also be used against you.
• Consult with a medical negligence or malpractice attorney– Medical negligence and malpractice cases are complicated and harder to prove than many other personal injury cases. You should consult with an attorney who focuses on these cases as soon as possible. They can advise you on your rights and help you evaluate your legal options.

Contact Our Virginia Medical Malpractice Lawyers

If you were the victim of a healthcare provider’s negligent actions, you need an experienced medical negligence attorney who can help you pursue compensation and accountability. Contact the medical negligence and malpractice attorneys at Kendall Law Firm today for a free consultation about your case. Our lawyers are dedicated to helping injured victims throughout Virginia get the justice they deserve.