What is negligence?

Unlike Malpractice, which takes into account the professional status of the caregiver, negligence is a deviation from the basic standard of care that any reasonable person would use in a given situation. Negligence is something that anyone can be liable for, whether or not they are a medical professional.


What is Negligence? Negligence is a type of tort or civil wrong which in its broadest terms covers all wrongful, unintentional actions by a person that injures someone else. The person who commits the action is often called a tortfeasor. The wrongful action or failure to act is judged under negligence law against the standard of what the court argues is conduct which a "reasonable" person under similar situations would perform. The law has identified a variety of factors to determine if a reasonable person would have acted in a similar manner. Factors the law considers include: expertise, knowledge, physical aspects of a person, circumstances of the actions, and the mental capacity and age of a person. Negligence also requires that the breach of duty causes damages to the injured party.

How to Prove Negligence

Negligence is proven by establishing several elements. These elements must be proven by the plaintiff or the injured party to recover damages. These elements include:

  1. Duty: to prove negligence the plaintiff must argue that the tortfeasor owed him a duty of care. In some cases a defendant may not be negligent even if their actions did not provide reasonable care if they can prove they did not have a duty to the plaintiff. For example, a property owner may not be responsible for a burglar who is injured on their property, even if dangerous conditions existed. In this example, the property owner could argue they did not have a duty of care to a burglar. A person also can not be held negligent if they fail to render aid to protect someone from an outside cause. For example, a doctor does not have a legal duty to provide emergency assistance during a car accident that they have witnessed.
  2. Breach of that duty- the tortfeasor failed to provide the standard level of care that a reasonable person would perform.
  3. Causation- the plaintiff must prove it is this failure or breach of duty which caused their injury. Most courts have decided to prove causation from a breach of duty the defendant can only be held liable for the injuries which could be foreseen.
  4. Pecuniary Damages- The plaintiff was indeed injured by the breach of duty.

Legal Defenses of Negligence

If a defendant has been convicted of negligence and each element of the law has been proven, they still may be able to reduce their liability under the law by proving any of the following defenses: comparative negligence, assumption of risk or contributory negligence.

    Comparative Negligence

    Most states have abandoned the idea of contributory negligence and adopted a more fair method of compensation by determining the percentage of fault each participant had in contributing to an accident. In many states the plaintiff's damages may be reduced by the percentage of negligence the jury determines the plaintiff exhibited which contributed to the accident. For example if a jury decides a plaintiff is 30% responsible for the car accident and the defendant's negligence was 70%, then the court will award the plaintiff only 70 percent of the damage amount. Certain states have adopted variations of the comparative negligence rule.

    Contributory Negligence

    Contributory negligence was a common law practice which barred defendants from recovering damages from a negligent individual if their own negligent behavior contributed to their injuries. For example if a driver swerved into the path of another driver who was speeding and a collision resulted, the courts might find that both drivers contributed to the accident through negligent behavior and neither driver could recover damages from the other. Most states have moved away from contributory negligence theories and have moved to a more equitable system of comparative negligence.

    Assumption of Risk or Affirmative Defense

    The assumption of risk defense argues that the plaintiff voluntarily agreed to a known or assumed danger and has relieved the defendant of any obligation of duty or conduct they had toward him. Legally this means that the defendant did not have a legal obligation to the plaintiff and cannot be held liable for their negligence or any resulting injuries. Another type of situation for the affirmative defense includes a voluntary relationship between the defendant and the plaintiff. For example if a plaintiff voluntarily rides in a car with a defective seat belt the defendant may raise the assumption of risk defense because the plaintiff knew that the seat belt was defective and chose to voluntarily assume the risk anyway. Under this circumstance the duty of the driver that would normally exist may not exist anymore. Courts have relied on the assumption of risk defense less given the increase of the use of comparative fault defenses.

Medical Malpractice

Medical Malpractice is a type of professional negligence which can include any type of unintentional medical action by a doctor, nurse, therapist or any other hospital personnel which results in harm to a patient. Medical malpractice can occur from medical errors, misdiagnosis, medical mistake or prescription errors. Medical malpractice can cause injuries which are severe or minor.

Unfortunately each year in the United States there are thousands of medical malpractice cases. Medical malpractice can occur if a medical professional has deviated from certain standards of accepted medical care and, as a result of this breach of duty, an individual is injured. This breach of care can be either a failure to provide proper medical care or the commission of an error. A court will evaluate the medical behavior of the medical staff member against other medical professionals in their same field to determine if they have breached their duty of care. Medical malpractice can result in loss of productivity, increased medical expenses and often pain and suffering.

Medical malpractice can be proved by affirming all the same elements as a negligent tort such as legal duty owed to the patient, breach of duty, causation of injuries and damages suffered from the injury. If an individual can prove they have been the victim of medical malpractice they may be awarded compensation including punitive and compensatory damages. Damages are generally assessed to compensate the victim for all their losses including earning potential, lost wages, medical costs and non-economic losses. If a defendant proves that the medical malpractice resulted from reckless behavior by the medical person additional damages may be assessed.

Nursing Home Negligence

Placing a loved one in an assisted living facility or nursing home is a difficult decision for many. Discovering that the loved one has suffered physically or emotionally from nursing home negligence makes that decision especially hard to accept. If your loved one is a victim of such negligence, contact a medical malpractice attorney near you. Your attorney can advise you on your rights and what options you have available to you.

Malpractice Term of the Day


Medical malpractice insurance policies generally have exclusions. Exclusions are any activities or actions which are not covered by the insurance policy.

Category: Malpractice

Latest Malpractice Question

Do I have a case if my dentures do not fit correctly and my dentist will not replace them

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