Medical Malpractice or Negligence? How To Tell the Difference and Protect Your Rights
Legally Reviewed and Edited by: Terry Cochran
When medical treatment leads to harm, the question isn’t just what went wrong—it’s why. Did a provider make an avoidable mistake, or did they knowingly take risks that violated standards of care?
Legally, these actions are known as medical negligence or medical malpractice, and the differences can affect your rights and ability to seek compensation. One involves unintentional errors, while the other points to reckless or improper decisions.
Understanding medical negligence vs. malpractice with the help of medical malpractice lawyers near me at Cochran, Kroll, & Associates, P.C. can guide your next steps. Our experienced team will review your case, explain your legal options, and fight for the compensation you deserve.
What Is Medical Malpractice?
Every medical specialty, whether emergency medicine or surgery, has specific standards of care that providers must follow. These guidelines ensure patients receive safe, competent treatment.
Medical malpractice happens when a provider knowingly disregards these standards, making decisions or taking actions that a qualified professional would have avoided. This isn’t just a mistake—it’s a failure to provide proper care despite having the knowledge and ability to do so. It could mean ignoring critical symptoms, making reckless choices, or failing to follow established guidelines.
To prove malpractice, the injured party must show that this failure directly caused harm. A medical malpractice lawyer can help determine if a case meets the legal criteria for malpractice.
Common Medical Malpractice Cases
Not every medical mistake qualifies as malpractice—what matters is whether the provider knowingly deviated from the accepted standard of care. Common medical malpractice cases include:
- Surgical errors. Mistakes made during surgery that exceed typical risks, such as operating on the wrong area or leaving instruments inside a patient.
- Misdiagnosis or delayed diagnosis. A provider fails to correctly identify a condition despite clear symptoms or test results, leading to improper or delayed treatment.
- Medication errors. A patient receives the wrong medication or dosage due to a preventable mistake in prescribing, dispensing, or administering drugs.
- Failure to treat. A provider correctly diagnoses a condition but does not provide appropriate treatment or follow-up care.
- Birth injuries. Errors before, during, or after delivery that harm the baby or mother, such as failing to respond to distress signals.
These are common examples of medical malpractice, where a provider had the knowledge and ability to act correctly but failed to do so. So, how is medical negligence different?
What Is Medical Negligence?
Medical negligence happens when a provider unintentionally causes harm by failing to act with reasonable care. It’s more like a careless mistake rather than a reckless or deliberate action.
While it can still cause serious injury and suffering, it lacks the intent or willful disregard seen in malpractice cases. The provider did not mean to cause harm, but their inattention or carelessness resulted in injury.
Even though negligence does not meet the strict legal standard of malpractice, it can still justify legal action if it leads to significant harm.
Common Examples of Medical Negligence
Not every medical mistake involves recklessness or a clear disregard for patient safety. Negligence cases often involve the following actions:
- Missed diagnosis. A doctor fails to recognize symptoms that another reasonable provider would have identified.
- Medication mix-ups. Dosages or prescriptions are incorrect due to clerical errors or miscommunication.
- Incomplete follow-up care. A patient is discharged without clear instructions or necessary monitoring.
- Misread test results. Lab work or imaging is incorrectly interpreted, delaying necessary treatment.
- Surgical oversight. A provider forgets a necessary step during a procedure, leading to complications.
While medical negligence and malpractice both involve harm caused by a provider’s actions, the distinction matters when pursuing legal action. Understanding how the law treats each can help determine the next steps in proving a case.
Medical Malpractice vs. Negligence: Legal Considerations
If a medical mistake caused harm, what happens next depends on whether it was negligence or malpractice. Patients’ rights in malpractice cases aren’t the same as in negligence claims, and the standard of proof is higher. Compare the legal aspects of each case below:
| Criteria | Common Legal Process | Compensation |
| Burden of Proof | Must prove these four elements:
1. Duty of care existed. 2. Provider knowingly or recklessly deviated from the standard of care. 3. The deviation directly caused harm. 4. The harm resulted in significant damages. |
Similar but does not require proving intent or recklessness.
Instead, must only show that the provider failed to act as a reasonable professional would and that this failure contributed to the harm. |
| Required Evidence | Michigan law requires expert testimony to prove a violation of medical standards and to obtain an Affidavit of Merit from an expert witness. | Typically relies on medical records, witness statements, and sometimes expert testimony, though not always required. |
| Filing deadlines | You have two years to file a medical malpractice claim in Michigan. | Under standard negligence laws, you have three years from the date of the incident to file a claim for personal injury. |
| Common Legal Process | More likely to go to trial due to the need for expert testimony and stricter legal requirements. | Often settled out of court since the legal standard is lower. |
| Compensation | Often higher due to the severity of harm, but Michigan caps non-economic damages, which are set at $1.047 million as of January 31, 2025. | Standard settlement covering medical expenses, lost wages, and pain and suffering. No cap on non-economic damages. |
If you believe you suffered medical malpractice at the hands of a healthcare provider, you have the right to file a claim for damages. A skilled attorney can walk you through the process and fight for compensation for your losses.
How To File a Medical Malpractice Claim in Michigan
After a medical malpractice incident, you must act quickly to protect your right to financial recovery. Follow these steps:
- Consult an experienced malpractice attorney. Medical malpractice cases are complex and subject to many rules and requirements in Michigan. Consult a qualified attorney to assess your case, determine medical malpractice vs. negligence, and begin filing the appropriate paperwork.
- Gather medical records. Request copies of all relevant medical documents from your healthcare provider, such as doctor’s notes, test results, imaging scans, and hospital discharge summaries. These records will help your attorney evaluate the case and build evidence.
- Obtain an expert opinion. Michigan law requires expert testimony to prove a violation of medical standards. Your lawyer will secure a qualified medical expert to review your case and confirm whether the provider breached the standard of care.
- File a notice of intent. Michigan law requires sending a notice of intent (NOI) at least 182 days in advance before filing a lawsuit. The provider has 154 days to respond before legal proceedings can begin.
- Evaluate settlement offers. During the waiting period, the provider may offer a settlement. Your attorney can negotiate on your behalf and determine whether the offer covers your medical expenses, lost income, and other damages. If negotiations fail, they can advise you on taking the case to court.
If your claim doesn’t meet the criteria for medical malpractice, you may still qualify for legal help for medical negligence. An attorney can guide you through gathering records, filing a claim, and seeking compensation without the added requirements of a malpractice lawsuit.
Why Work With Cochran, Kroll & Associates, P.C.
If you’re considering filing a medical malpractice lawsuit against a caregiver, you need a knowledgeable legal team to protect your interest against aggressive hospitals and their insurers.
The skilled medical malpractice lawyers at Cochran, Kroll & Associates, P.C. have a long history of representing the interests of Michiganders and protecting their rights. We have a proven track record of success in medical malpractice cases, with a $15.8 million settlement on behalf of a Monroe, MI, family for a birth injury case–one of the largest in Michigan’s history.
Our senior partner, Eileen Kroll, is a skilled medical malpractice lawyer and a registered nurse with years of experience at a large Detroit hospital. This unique background provides her with expertise in both law and healthcare, which she has used to represent clients since joining the firm in 2013.
Eileen devotes herself to protecting client rights, working tirelessly to accurately assess each malpractice case and maximize compensation and settlement offers. If you choose our firm to handle your malpractice case, we are ready to become your strongest advocates so you have the best possible chance of a successful outcome.
Contact Cochran, Kroll & Associates, P.C., and Receive Qualified Representation
Understanding the differences between medical malpractice vs. negligence is necessary to determine your rights and legal options. The skilled malpractice lawyers at Cochran, Kroll & Associates, P.C. can review your case, determine whether your situation falls under malpractice or negligence, and advise you on the right steps to follow.
Contact our law offices today for a free consultation.
Our contingency fee basis means we only get paid if we win your case, so there is no financial risk to you to get started. Call our law firm today at 1-866-MICH-LAW and schedule your no-obligation, free case evaluation.
Disclaimer : The information provided is general and not for legal advice. The blogs are not intended to provide legal counsel and no attorney-client relationship is created nor intended.
