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Is It Negligence Or Malpractice? It Makes A Difference

Liability8

When a doctor does something wrong, it is a medical malpractice claim. When an average layperson does something wrong and causes you an injury, it is just an ordinary negligence claim. But is it really that simple? Sometimes it can be more difficult than you think to tell the difference.

Why the Difference Makes a Difference

The difference between medical malpractice, and standard negligence makes a big difference.

Malpractice claims have a much shorter statute of limitations—only two years—than ordinary negligence claims do. If you think you have a standard negligence claim, and you file your lawsuit after three years, and later a court finds that your case is really a malpractice case, your case is likely barred forever, having missed the 2-year time limit.

Additionally, in Florida, there is a complex pre-suit discovery phase to medical malpractice cases. Parties have to exchange information, exchange settlement talks and offers, and often, participate in a mediation or non-binding arbitration. Failure to follow these required steps before filing the lawsuit, can lead to a dismissal—but these are only requirements for medical malpractice, not regular negligence.

How to Tell the Difference

Sometimes, it’s obvious when something is ordinary negligence. But not always.

For example, let’s say that a nurse in a hospital asks you to get up on an examining table. The table has a rough edge that then cuts you as you are getting up on the table. Is that malpractice?

It may be—you are in the hospital, nurses can be sued for medical malpractice, and you are getting on the table for the purpose of a medical examination or tests. But on the other hand, getting on an exam table doesn’t involve any diagnosis, and the nurse is not performing any specific medical skill or applying any professional knowledge.

In many treatment facilities, such as for mental health patients, or in nursing homes or long term care centers, many nurses perform ordinary day to day chores, like moving patients, but they also may provide therapy, training or provide medicine, all of which may be considered medical care and treatment.

Judgment or Special Skills are Needed

Often courts will ask whether the action that caused the injury involved or required any specialized judgment or skill by the provider.

In other words, if “anybody” could perform the action that caused the injury, it is likely ordinary negligence. If only someone with training, or a license, or medical training could perform the action, then the action that caused the injury is more likely to be medical malpractice.

Contact the Tampa personal injury lawyers at  Barbas Nunez Sanders Butler & today if you have been injured by the negligence of a doctor. Schedule a consultation today.

Sources:

caselaw.findlaw.com/fl-district-court-of-appeal/1738860.html

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0766/Sections/0766.106.html

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