Key Difference Between Error of Judgment and Negligence in Medical Malpractice Law

Doctors performing surgery in hospital operating room

You’re under the care of a medical professional, they’ve seriously misjudged the situation, and you’ve experienced a serious injury or loss as a result. Is this a textbook case of medical malpractice? Should you be able to be compensated for your injuries?

If you ever find yourself in this situation you’d obviously hope that the answer to these questions is “yes.” Unfortunately, the more likely answers are “maybe,” “not necessarily,” and “well, it depends.”

In this blog post I explain why a medical professional’s alleged negligent actions are not always necessarily considered medical malpractice under the law. While an adverse medical outcome may be the result of negligence, it is not always negligent. Rather, medical malpractice can only be said to occur when an error is shown to have breached the standard of care and the cause of your injuries.

What Is The Standard of Care?

In the medical field, the standard of care is the level of treatment a reasonably competent health care practitioner would be expected to provide any other patient facing similar circumstances. If that sounds very general and vague, it’s because it is. Many factors come into play when the legal system is asked to decide if the standard of care has been breached in a given case.

When determining the appropriate standard of care, the type of medical service being provided; the specialization, training and experience of the practitioner providing care; and, even the location where the treatment is taking place, may be considered.

Error of Judgment or Negligence?

Within each field of medicine there are general rules and guidelines to follow as care is administered to a patient. Although these guidelines are designed to provide a relatively uniform level of care and treatment based on current research and best practices, trained medical professionals must often rely on their own judgment when deciding both the type of treatment to administer and when to administer it.

Many unique factors present may be weighed by the practitioner as he or she considers the appropriate course of action. If the medical practitioner ultimately errs in deciding when and how to act and the patient suffers serious harm as a result, the question becomes: would another reasonably competent practitioner, possessing the same information and working under the same circumstances, have come to the same conclusion or made a similar error?

For example, the availability of a patient’s medical history, the details in such a history, inconclusive test results, and matters of urgency (the time available to make a decision) may all come into play when a court of law is asked to determine if a medical professional’s actions, or lack of action, would have been made by another reasonably competent practitioner presented with the same circumstances.

It would be unfair to hold doctors and other medical practitioners to the standard of perfection. Rather, they are “bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing…” If a practitioner presents himself or herself as a specialist, “a higher degree of skill is required of [them] than of one who does not profess to be so qualified by special training and ability.”

Provided that they satisfy their professional obligation to provide an honest and intelligent exercise of judgment, an error in judgment in itself is not equal to negligence. The latter is more likely to be deemed to occur if the error in judgment was “an act of unskillfulness or carelessness or due to lack of knowledge.”

How Do I Know The Difference?

If you or a loved one has suffered serious harm at the hands of a medical practitioner, you may feel disheartened or defeated when reading that an error in judgment is not, in itself, a clear case of medical malpractice in which you may be eligible for compensation and damages. Unless you’re a medical expert yourself, how will you know if what happened to you was an unfortunate but ultimately understandable mistake or an example of negligence that breaches the standards of care.

In short, you can’t. But you can contact a personal injury lawyer specializing in medical malpractice to help you investigate and determine whether you may have a case and claim for damages.

Recognized as one of Canada’s top personal injury firms, Howie, Sacks and Henry has lawyers with the expertise to research the facts of a potential medical malpractice case. If we determine an error in judgment looks to have breached standards of care, we will call on medical experts to provide an opinion as to whether negligence or incompetence may have played a role.

In a complex and complicated area of law such as medical malpractice, knowing whether you have a case isn’t always as clear as night and day. Determining the answer may take time; but when you contact an experienced and knowledgeable HSH medical malpractice lawyer, you can be confident that you’ll have an attentive and compassionate advocate ready to help you find the answer.

Do You Have A Question About Medical Malpractice You’d Like Answered?

For more information or if you have questions about a medical malpractice case, please feel free to contact medical malpractice lawyer Neil E. Sacks at 416-361-5811 or

Disclaimer: The contents of this article are not to be relied upon as legal advice.

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