Most medical malpractice is actually medical negligence. In law, for there to be negligence, there must be (1) a duty, (2) a breach of that duty, (3) the breach must cause injury, and (4) there must be an injury.
First, every medical provider has a duty to each patient to act in the same manner as a reasonably prudent medical provider would act in the same situation. A medical or health care provider can be anyone (doctor, nurse, lab technician, hospital staff, etc.) who provides medical related services.
Second, for there to be malpractice or negligence, the doctor or nurse, etc., must breach his/her duty to his/her patient, or, in other words, act in a way that is not the same way that a reasonably prudent doctor or nurse, etc., would act for his/her patient. If a doctor or nurse, etc., acts the same way a reasonably prudent doctor or nurse, etc., would act, then there is not medical negligence or medical malpractice.
The act of the doctor or nurse, etc., can be either an affirmative act or a failure to act.
An affirmative act that may be malpractice is an action taken by the medical provider, but which is an incorrect action. For example, a nurse may give a shot to a patient, but give the wrong medicine or give the shot in the wrong place in the patient’s body.
A failure to act may also be malpractice. For example, a doctor may not require a certain test be given to the patient, but a reasonably prudent doctor would require the test because the test would show that a condition did or did exist in the patient.
Third, whatever the health care provider did or didn’t do must cause the patient injury. In the above examples, giving the patient the wrong medicine or giving the shot in the wrong place in the patient’s body must be what caused the patient to be injured. And the failure of the doctor to require the certain test must be the cause of the patient’s injury.
Fourth, the patient must, in fact, be injured for there to be malpractice or negligence. It is simple, if a patient is not injured, there is not medical malpractice or medical negligence. It doesn’t matter if the nurse gave the wrong medicine or the shot in the wrong place, or the doctor did not require a certain test, if the patient was not injured, there is not a malpractice or negligence case.
The above information is general information only. If you have any questions whatsoever, talk with a lawyer licensed in your state.