If something goes wrong with your medical treatment, you may be eligible to claim compensation. But would this be a medical malpractice or a medical negligence claim?

There are differences between the two, but the line between them can be quite a fine one.

Here, we explain what each of these categories is, and what factors can make medical malpractice different from medical negligence.

What is Medical Negligence?

In medical negligence, a doctor or healthcare professional causes harm to a patient unknowingly, either by failing to take action when it is required, or through ignorance.

If your care or treatment fall below expected professional standards, and your health suffers as a result, you may have a medical negligence case.

You must be able to prove that you would not otherwise have suffered this damage.

The damage may occur due to a misdiagnosis or a delayed diagnosis. It can be something that happens during surgery, such as a member of the surgical team leaving instruments behind in the body, which go on to cause complications.

What is Medical Malpractice?

Medical malpractice may occur in many of the same contexts as medical negligence. The two are closely connected.

However, the crucial difference comes down to intent on the part of the healthcare professional concerned.

Surgery is a key category where medical malpractice can become an issue. For example, if a staff are in a rush and, essentially, cut corners, leading to avoidable harm to the patient.

Another form of medical malpractice can be over-prescribing medication, or prescribing medication in the knowledge that the side-effects may be acute for the patient.

The key thing in medical malpractice is that the doctor, surgeon or other healthcare professional has not simply made a mistake.

They knew they should have done something to treat the patient, but failed to do so, while knowing that this failure would result in damage to the patient.

The healthcare professional has not intended to harm the patient, but they acted intentionally because they knew the risk of harm was there.

While there are certain grounds for medical negligence that a claimant must first meet, making this critical distinction between malpractice or negligence is going to be something a legal expert will need to do.

What is the Burden of Proof?

As a claimant you must prove:

• That the healthcare professional has broken their duty of care towards you, and

• That any physical or mental injuries you have suffered would not have occurred otherwise.

Regardless of whether your claim comes under malpractice or negligence, you must be able to prove these things.

You cannot claim without proof of negligence. If for example, you have had treatment that was not successful, or has not met your expectations, this on its own is not grounds for negligence, or malpractice.

Why is Causation Important?

Establishing causation is a legal term, which means proving that there has been a breach in the duty of care towards you.

It is important, but also it can be difficult to prove.

It relies on being able to demonstrate that the reason for your injury is due to a breach in the duty of care when weighing up the balance of probabilities.

For example, if you have symptoms of food poisoning but the doctor sends you home without treatment, and you later die, does this establish causation for negligence?

If it is shown that no treatment could have saved you, then no. But if you could have been treated successfully, then you have grounds for proving causation.

If, on top of this, you can prove that the doctor knew that you required treatment, but decided not to treat you, for their own reasons, then this could count as medical malpractice.

Negligence or Malpractice?

The majority of medical claims made in the UK are against the NHS, rather than private practitioners.

Most of these are medical negligence claims. The NHS receives 10,000 new claims for compensation a year.

The Clinical Negligence Scheme for Trusts funds most claims and legal fees for NHS trusts.

Many people who end up suing the NHS are looking for answers primarily. They want to know why something has gone wrong with their treatment, or the treatment of a family member.

It is the task of a legal professional to uncover the reasons for negligence, or malpractice, and to make a claim on your behalf.For help and advice about making a claim, please call us on 0151 256 7898, email enquiries@waferphillips.co.uk or fill in our contact form, and we will be in touch as soon as possible.