What is medical malpractice anyway?

Here at the old firm we often test a case in front of a group of regular people prior to trial to see how they react to various issues. We do this because after years of litigation in which we've focused on minutia we often worry about losing sight of the forest through the trees. Nothing is better, in my opinion, than asking a group of non-lawyers what they think of your case to help prepare for trial. Most often the kind of cases we test in this way are lawsuits brought against doctors, nurses and hospitals; medical malpractice cases. During these tests one question comes up time and again: What is medical malpractice anyway? Is it different from medical negligence? After presenting a case to a focus group we often hear people say that they felt the defendant, i.e. physician, acted negligently but was probably not guilty of malpractice. This tends to leave us scratching our heads. Under Illinois law "medical negligence" and "medical malpractice" mean exactly the same thing. So why is it that non-lawyers, the kind of folks you'd see on a jury, tend to intuitively see the two differently?

A physician is guilty of medical negligence and medical malpractice when she fails to act towards a patient as a reasonably careful physician would in a given circumstance thereby causing that patient harm. The jury must make a determination of reasonableness by listening to expert testimony. What we often see, however, is that many people naturally tend to think that malpractice is something worse than negligence. I frankly don't know why this is. My guess is that malpractice just sounds worse. It sounds like malfeasance, malcontent, malicious, malodorous and other words with the prefix "mal" that tend to have a very strong negative connotation. The problem with this confusion for injured patients and their attorneys is that a jury may be misled into believing that they ought not return a verdict that provides for the harms suffered by the patient unless the physician did something bordering on the intentionally evil. Virtually no medical malpractice cases involve an intent by a physician (or other health care professional) to do harm. All such cases involve an allegation of negligence.

Patients are not entitled to receive the very best care from their doctors, though one would hope that all professionals try to serve their clients/patients to the very best of their abilities. A physician, however, has a duty to at least care for and treat her patients reasonably. This is important to remember. One need not feel as if their doctor intended to harm her before she questions her physician's conduct.