Negligence vs. Malpractice in California – What is the difference?

The difference between negligence and malpractice in California lies in whose conduct caused your injuries. Both are civil claims for compensation in personal injury lawsuits.

Normal people have a duty to behave like a reasonable person. Failing to do so is negligence.

When working, certain professionals, like lawyers and doctors, have a duty to behave like reasonably careful professionals in their field. Failing to do so is malpractice.

In this article, I explain the concepts of negligence and malpractice in California. Also listen to our informational podcast:

What is negligence?

In California, negligence is what happens when one person has a duty of care towards you and then fails to uphold it. If that failure causes an injury, you may be entitled to compensation in a personal injury case.¹

The standard that people have to meet in order to uphold their duty of care towards you can vary. Typically, people have to meet the standard of care of a reasonably careful person in similar circumstances. Failing to do so is negligence, and you can sue if someone’s negligence caused your injuries.

Some examples of negligence that lead to injuries are:

• driving a motor vehicle while distracted and causing a car accident with you, and
• failing to remove ice from a sidewalk, causing you to slip and fall.

What is malpractice?

In California, malpractice is what happens when a professional is working in their field of expertise and fails to use the same level of skill, knowledge, and care that other reasonably careful professionals in their field would use.²

This is a higher standard of care than other, non-professional people have towards one another. Only certain types of professions are held to this higher standard of care while in the course of their job, such as:

• lawyers,
• doctors,
• surgeons,
• medical specialists, like a heart surgeon or an anesthesiologist,
• nurses,
• psychiatrists, and
• dentists.

The professional’s particular field matters. Those who specialize in a particular area will be held to a standard of similar specialists, rather than to non-specialists in the profession.³

Note that the accepted standard of care is that of a reasonably careful professional in the same field. A professional’s conduct can be subpar without being malpractice.

What are the differences between the two?

The following table outlines the differences between negligence and malpractice, which stem from the standard of care that must be met in California:

	Negligence	Malpractice
Definition	The failure to act like a reasonably prudent person in similar circumstances	The failure to provide a level of care that other reasonably careful professionals in the same field would provide
Who it can apply to	Anyone	Certain types of professionals, while they are in the scope of their work
Type of legal action	Personal injury claim	Malpractice claim
Example	A distracted driver causing a car accident	A surgeon performing a surgery on the wrong body part

There may also be other differences between cases based on negligent conduct and professional malpractice with regard to:

• a shorter statute of limitations for malpractice claims,
• damage caps, and
• the importance of subject matter expert witnesses to establish the standard of care.

What is a duty of care for medical malpractice vs. negligence?

In California, the duty of care for medical malpractice cases is that of a reasonably careful healthcare professional in the same field. Meanwhile, the duty of care for personal injury cases based on ordinary negligence is that of a reasonable person in similar circumstances.

Medical professionals are held to a higher standard of care than ordinary people when they are within the scope of their work. However, this often means that it takes a medical expert’s examination of the medical records to determine what the duty of care actually was: A California personal injury lawyer can help make that happen.

Is there a difference between medical malpractice and medical negligence?

Medical malpractice and medical negligence are interchangeable terms in California. They mean the same thing.⁴

Unfortunately, some online sources cause confusion by differentiating between the two based on the healthcare professional’s level of intent. According to these sources:

• medical negligence cases are when a healthcare professional accidentally causes harm during medical treatment, and
• medical malpractice is when they make a mistake or decision while being aware of the potentially harmful consequences.⁵

In California, however, it is the deviation from the professional’s standard of care – not intent – that makes a course of conduct malpractice.

Example: A surgeon accidentally leaves a scalpel inside a patient during the procedure. While it was accidental, it can still amount to malpractice for failing to uphold the surgeon’s standard of care.

What are some common examples of medical malpractice claims?

Some common and especially egregious cases of medical malpractice include:

• medication errors, like prescribing the wrong amount or the wrong medication,
• the misdiagnosis of a medical condition,
• surgical errors,
• wrong site surgeries,
• leaving surgical equipment inside a patient, or
• performing an unnecessary surgery.

How can I recover money damages for medical malpractice?

If you can prove the elements of a medical malpractice claim by a preponderance of the evidence, you can recover compensation for your damages. The elements of a malpractice claim in California are:

1. the defendant had a duty to use the skills, knowledge, and prudence commonly possessed in the defendant’s field,
2. the defendant’s negligent actions amounted to a breach of duty,
3. the defendant’s breach proximately caused your injuries, and
4. your injuries resulted in damages.⁶

Potential damages include not only your medical bills and lost wages. You can also get money for your pain and suffering and the emotional distress of your loved ones, also known as loss of consortium.

In extreme cases, you may even be eligible for punitive damages.

If the victim of medical malpractice died from the poor medical care of their healthcare provider, their loved ones can file a wrongful death claim on the victim’s behalf.

Additional Reading

For more in-depth information, refer to the following article:

• Legal Malpractice and the Structure of Negligence Law – Fordham Law Review.
• An Overview of Professional Negligence – Memphis State University Law Review. 
• One Hundred Years of Harmful Error: The Historical Jurisprudence of Medical Malpractice – Wisconsin Law Review.
• Medical Malpractice Litigation and Tort Reform: It’s the Incentives, Stupid – Vanderbilt Law Review.
• Contracting over liability: Medical malpractice and the cost of choice – University of Pennsylvania Law Review.

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Legal References