Understand the difference between negligence and malpractice

Staff Development Weekly: Insight on Evidence-Based Practice in Education, September 23, 2005

What constitutes negligence:

  • Conduct lacking due care.
  • Conduct that falls below a standard established by law.
  • Deviation from the standard of care that a reasonable person would do (or not do) in a particular set of circumstances.
  • Duty - There must be a legal duty, requiring the defendant to conform his or her conduct to a specific standard.
  • Breach - The failure of the defendant to conform to the specific standard.
  • Injury - The physical, financial, or emotional injury must have resulted directly from the breach of duty. Courts have denied liability when this connection has not been established.
  • Individual does not intend to bring about the specific results.
  • Individuals have an obligation to anticipate results and guard against them.

What constitutes malpractice:

  • Lack of professional standard of care - i.e., the specialized skills, knowledge, and abilities of a profession.
  • Failure of professionals to act within the prevailing standards of their profession.
  • Plaintiff must establish that the defendant failed to follow the standards of his or her profession.
  • The general public has a right to expect and receive a higher standard of care from a professional person.

Editor's note: The above excerpt is from the new online course, "Nursing CE Series: Legal Issues for Nurse Managers." For more information on this and other courses in our library, go to and click on Nursing CE.

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