Is Your Case Malpractice, Or Just Normal Negligence? It Makes A Big Difference
Let’s say that you are in a hospital, getting ready to take an MRI scan. The nurse tells you to get onto the bed, where you will be scanned. You hop up onto the bed, but as you are doing so, you don’t see a large, sharp, metal piece that is sticking out from the bottom of the table. As you hop up, that sharp piece severely lacerates your leg.
Certainly, someone is liable—in no situation is it acceptable to have a large piece of sharp metal sticking out from an examination table.
But are they liable for malpractice? Or are they simply liable in normal or ordinary negligence? Before you just say it doesn’t make a difference because someone is liable, think again: The laws for malpractice and ordinary negligence are quite different, and a failure to file your injury case as the right type of case—medical malpractice or negligence—can have serious consequences.
Why it Makes a Difference
Malpractice laws are somewhat different from ordinary negligence. In malpractice, there may be shorter time periods that you can file your case. There may be caps on the type of damages you can receive.
Even what you must prove may be very different—for example, in a malpractice case, you must show that your treater did not act according to the accepted standard of care that other medical providers in a similar situation would use. But that’s not the case in ordinary negligence—there, the question is just what a “reasonable person” would or would not do.
What’s worse, failing to file your case the right way can lead to the case getting thrown out altogether. For example, if you file your case as malpractice, but later it turns out it should have been ordinary negligence, you can refile the case—but not if the time to file the original case has expired.
For example, if the statute of limitations is three years, and you have a malpractice case that, four years after your injury, turns out to have just been ordinary negligence, you may not be able to refile the case—you’re now past the three year limit. You may have just lost, completely, the right to sue, all because you didn’t understand the difference between malpractice and ordinary negligence.
No Exact Test
So what is the difference? Courts don’t have an exact answer, but many courts have said that where an act by a treater would take the application of professional skill, or the use of special training in the medical field, the case is one for medical malpractice. Put another way, if anybody could have done the action that caused the injury, it is ordinary negligence; if it requires using special training in the medical field it is malpractice.
That is hardly a definitive line, making it very important that your attorney reviews your case to make sure it is filed the correct way.
If you have been injured by the actions or omissions by a doctor, we can help you with your medical malpractice case. Call our Boston personal injury lawyers at The Law Office of Joseph Linnehan, Jr. today at 617-275-4200.