Medical malpractice and ordinary negligence are two different concepts in personal injury law. However, they’re both very important. If you’re the victim of a hospital injury, poor medical services, or you otherwise have a poor outcome from seeking medical care, the difference is significant in your legal claim.

You may bring your claim for compensation based on medical malpractice, ordinary negligence, or both. Our Nevada personal injury attorneys explain the difference between medical malpractice and ordinary negligence.

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What’s the Difference Between Medical Malpractice and Negligence?

The difference between medical malpractice and negligence is that medical malpractice is based on professional standards for trained medical services providers. In contrast, ordinary negligence is based on a general duty of care.

Medical malpractice depends on what professionals should know and do in any given situation. Ordinary negligence is based on any duty that one person owes another even without any specialized training or skills. The difference between medical malpractice and negligence is the standard that applies to evaluate the actions of the person accused of causing an injury.

Read More: Elements of Negligence

Suing for Ordinary Negligence in the Provision of Medical Services

There are many ways that your medical care services provider can fall short in meeting their legal obligations to a patient. Some of the ways a medical services provider can fail their patient are directly related to care. Examples of inadequate medical care include failure to diagnose, incorrect diagnosis, and foreign objects left in the body, to name a few. Cases based on these types of failures are typically medical malpractice cases.

However, if you seek medical attention and receive a poor outcome, you should also look at ordinary negligence. Although ordinary negligence isn’t based on standards of medical care, it may apply to a victim nonetheless. The way that the harm occurs may be simple or ordinary negligence. Simple negligence is a standard of how an ordinary person would act in any given situation. It’s based on a reasonable person standard rather than on a professional practice standard. As a victim, you may qualify to claim both medical malpractice and ordinary negligence.

Symborski v. Spring Mtn. Treatment Center, 403 P.3d 1280 (2017)

The Symborski v. Spring Mtn. Treatment Center case is an example of a Nevada case where a victim pleaded both medical malpractice and ordinary negligence.[1] The father brought the case because of the medical care that his adult son received. The son received hospital care. The hospital staff had instructions not to discharge the son to his father’s home because of their previous bad relationship. Despite the instructions, the patient said he wanted to go to his father’s house. He left the hospital with enough money to pay for a taxi to the father’s house.

While there, the son vandalized the father’s home. He caused $20,000 in damage. The hospital didn’t tell the father that the son had been discharged. The father sued the hospital for negligence and medical malpractice.

No Medical Affidavit Required for an Ordinary Negligence Claim

The defendant moved to dismiss the complaint because the plaintiff did not file a medical expert affidavit affirming that medical malpractice occurred. Nevada Revised Statutes 41A.071 says that if a plaintiff doesn’t file an expert affidavit with a medical malpractice claim, the court must dismiss the case.[2] When the court dismisses the case for no medical affidavit, the dismissal is without prejudice, and the plaintiff may file the case again.

However, the court in the Symbroski v. Spring Mtn. Treatment Center case declined to dismiss the complaint. The court said that when a hospital performs non-medical services, it can be liable for ordinary negligence. When the actions of the hospital amount to ordinary negligence, the medical affidavit is not required. The court said that the hospital’s actions in discharging the patient did not involve medical judgment or diagnosis.

The Symbroski v. Spring Mtn. Treatment Center case makes it clear that pleading both causes of action is very important. It’s critical to evaluate the case to determine if the case is based on medical malpractice, ordinary negligence, or both. While it’s easy to assume that any case having to do with a healthcare provider is a medical malpractice case, there’s a good chance that you can and should also plead ordinary negligence as part of the claim.

How Do You Claim Both Medical Malpractice and Ordinary Negligence?

To claim both medical malpractice and ordinary negligence, you need to state both causes of action in your pleadings. In the first documents that start your case, called the complaint, you need to say that you’re demanding compensation based on both medical malpractice and ordinary negligence.

Stating the cause of action in the complaint is called pleading the cause of action. Both medical malpractice and ordinary negligence should be clearly detailed to ensure that your complaint is thorough. Pleading both actions lays the foundation for a successful claim.

Why Plead Both Medical Malpractice and Ordinary Negligence?

Pleading medical malpractice and ordinary negligence can make it easier to win the compensation that you deserve. The elements that you need to prove for the two types of pleadings are different. With both causes of action, the jury has many theories to consider the case.

Ultimately, you need to prove that the person or people responsible for your injuries breached their duty of care. When you have multiple ways to prove your case, you’re ultimately better able to connect with the jury and ensure that you meet the elements to win the compensation that you deserve. Failing to plead both causes of action, when it’s applicable, can mean leaving compensation on the table.

How Our Injury Attorneys Can Help

Even if it’s evident that your case is a medical malpractice case or based on ordinary negligence, how you plead your case is a critical part of your claim. With years of experience and thousands of satisfied clients, our legal professionals can evaluate your case to determine what causes of action you can and should plead. We know how to draft the complaint to state your claim correctly. Finally, our team can assist you in building the evidence that you need to win your case.

Nevada Personal Injury Attorneys

Are you wondering how to pursue your medical malpractice claim? Contact our attorneys for a free evaluation of your case.

Sources

[1] Szymborski v. Spring Mountain Treatment Ctr., 403 P.3d 1280 (Nev. 2017)

[2] NRS 41A.071