Malpractice and neglect are both failures of medicine defined in the law in New York, but they differ in key ways and they may or may not both apply to the same case.
Medical malpractice takes place when a doctor or other care provider makes a choice that can lead to a negative outcome for the patient. Even if there was no intent to cause harm, and even if actual harm did not occur, it can still qualify as malpractice. A doctor who prescribes a medication that has serious side effects while knowing its risks is a potential example of malpractice, especially if the patient had a history that contraindicated the medication. In the most severe cases, incidents of malpractice can cause permanent injury or death.
Neglect occurs when a care provider makes a mistake by failing to do something, observe something, or act on something when they should have. Rather than being an active choice, neglect is the absence of a choice that needed to be made in order to meet the standard of proper care. For example, a surgeon may leave a sponge inside a patient during surgery. Even if this is caught before it can cause harm, it is still neglect.
In both cases, the care team’s misdeed caused or could have caused harm, even if they did not intend for any harm to take place. Professional standards of care, judgment, and professionalism provide guidelines for what providers should and should not do, and when they fail to live up to those standards, the providers can commit either neglect or malpractice.