What’s the Difference Between Medical Malpractice and Negligence?

When medical care goes wrong, you may think about claiming compensation. As you’re doing your research and talking to others, you may hear the phrases medical malpractice and negligence. You might wonder: What’s the difference between medical malpractice and negligence? Is there even a difference?

Yes, there are differences between the two. Understanding the distinction is vital to the claims process and receiving the financial compensation that you deserve. Our Miami medical malpractice lawyers explain.

Judge signing arrest warrant for medical error, banging gavel near stethoscope

Do I Have a Medical Malpractice Claim or Negligence Claim?

Medical malpractice is based on a professional standard in a healthcare setting. In contrast, negligence is based on an ordinary duty of care that applies to everyone.

Medical malpractice depends on professional standards of skill, training, and actions, and negligence depends on the reasonable behavior of ordinary individuals.

RELATED: Can More Than One Doctor Be Liable in a Medical Malpractice Claim?

What Is Medical Malpractice and Medical Negligence in Florida Law?

Florida law § 766.1021 defines medical malpractice and medical negligence. It is when an injury occurs because of the negligence of a healthcare provider in breach of the prevailing standard of care. It considers the care, skill and treatment that is recognized as acceptable for the type of healthcare that the patient receives.

Medical negligence is a form of medical malpractice, but medical malpractice also includes reckless and intentional misconduct. The personal injury lawyers at Bernstein & Maryanoff can help identify what type of claim you have and the compensation you may receive for your damages.

Medical Malpractice vs. Negligence Examples

Medical malpractice relates to professional standards of accepted care. Negligence is a lack of ordinary care that does not rely on healthcare standards. Some examples include:

  • A doctor fails to recognize common symptoms of a disease. The disease goes undiagnosed for an additional six months. The patient is a victim of medical malpractice.
  • When bringing the patient their lunch, a nurse’s aide spills hot tea on the patient. The patient suffers burns. The patient is a victim of ordinary negligence.
  • The doctor mixes up patient charts, and the victim receives the wrong dose of medication. Medical malpractice has occurred.
  • During a patient transfer to a wheelchair, the patient suffers a fall. The caregiver was not trained to do a transfer safely. Ordinary negligence has occurred.
  • Doctors operated hastily and neglected to take appropriate measures to monitor vital signs and respond to signs of distress. As a result, the patient suffered prolonged unconsciousness and brain damage. The patient is a victim of medical malpractice.
  • A cleaning crew leaves a wet floor with no warning signs. A patient trips while walking to the bathroom. Ordinary negligence has occurred.

That an action occurs in a medical setting does not, in and of itself, make it medical malpractice. (Lynn v. Mount Sinai Med. Ctr., Inc., 692 So.2d 1002, 1003 (Fla.Dist.Ct.App. 1997)2. For medical malpractice, you generally need an expert witness to explain the appropriate standard of care. On the other hand, a jury should be able to understand reasonable conduct for situations involving ordinary negligence.

RELATED: Common Cases For Legal Malpractice Claims

Florida Medical Malpractice vs. Negligence Case Law

The Florida Supreme Court explained the difference between medical malpractice and ordinary negligence in National Deaf Academy, LLC v. Townes, 242 So.3d 303 (Fla Sup. Ct. 2018)3. The case involved an employee restraining a resident. The court said that for the claim to be medical malpractice, the actions of the defense must be directly related to medical care and services. These services must involve professional judgment and skill.

Similarly, in Silva v. Southwest Florida Blood Bank, Inc., 601 So.2d 1184 (Fla. 1992)4, the court said the action must arise from medical diagnosis, treatment, or care. A healthcare provider must render the services in question. The Silva court stated that a blood bank is not a provider of healthcare services.

medical malpractice claim forms and stethoscope

Are Medical Malpractice and Medical Negligence the Same Thing in Florida?

Legally, medical negligence is a type of medical malpractice in the State of Florida. Medical malpractice can occur because of negligence, recklessness, or intentional misconduct. If you are the victim of medical malpractice in Florida, you have received substandard healthcare that is legally inadequate in some way.

All medical negligence is medical malpractice, but reckless and intentional actions are also medical malpractice. If you have suffered injuries due to medical malpractice, contact our team to learn how we can fight for your rights and hold the wrongdoers accountable.

Why Does the Difference Between Medical Malpractice and Ordinary Negligence Matter in Florida?

The differences between medical malpractice and ordinary negligence have practical implications in Florida legal claims in several different ways:

  1. The pre-suit process – In a medical malpractice claim, Florida law § 766.106(1)(a)5 requires the victim to undergo an involved pre-suit investigation process. If the claim is based on ordinary negligence, these requirements do not apply.
  2. Shorter statute of limitations – Medical malpractice carries a two-year statute of limitations, while the statute of limitations for general negligence is four years. See Florida law § 95.11(3)(a)(4)(b)6.
  3. Different proofs – For a medical malpractice claim, it’s almost always necessary to employ a medical expert to explain the standard of care and how a breach of duty occurred. There are steps to qualify the individual as an expert and admit their testimony into evidence.

How Can an Attorney Help Me With a Medical Malpractice and Negligence Case?

When you are the victim of a personal injury that occurs in a medical setting, an attorney can help you with the many complex tasks involved in claiming compensation. You need to know what type of claim you have so that you can go about pursuing it in the right way. Even your very first pleadings must precisely state whether you are claiming medical malpractice, negligence, or both.

Then, you must follow the proper procedural steps and gather the evidence to prove the type of case you are pursuing. An attorney can help you evaluate your case to determine if medical malpractice or ordinary negligence has occurred. They understand the different types of proofs needed, and they can assist you in following all of the necessary steps to bring your claim effectively.

Related: Medical Malpractice Lawsuits in Miami

Attorneys for Medical Malpractice and Negligence Cases

If you have been the victim of a personal injury in a healthcare setting, our Miami injury attorneys can help. With decades of experience helping medical malpractice and negligence victims, we understand the subtle distinctions that can make a big difference. Let us help you evaluate your case and fight for the compensation you deserve. Contact us today.

a team of lawyers discussing the case


1FLA. STAT. § 766.102 (2021)

2Lynn v. Mount Sinai Med. Ctr., Inc., 692 So.2d 1002, 1003 (Fla.Dist.Ct.App. 1997)

3National Deaf Academy, LLC v. Townes, 242 So.3d 303 (Fla Sup. Ct. 2018)

4Silva v. Southwest Florida Blood Bank, Inc., 601 So.2d 1184 (Fla. 1992)

5FLA. STAT. § 766.106(1)(a) (2021)

6FLA. STAT. § 95.11(3)(a)(4)(b) (2021)

About the Author

attorney Jack Bernstein standing in front of a blurred background

Jack G. Bernstein, ESQ.

Jack Bernstein is a hard working and highly motivated personal injury attorney in Miami, Florida with over three decades of experience. He is a strategist and idea person, with a genuine passion for helping his firm’s clients. If you've been injured, contact Jack Bernstein today for a free evaluation of your case.

The information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.