To err is human. Doctors are human. Doctors will therefore err, and doctors understand this. However, doctors want to know why their mistakes are called “negligence,” a term that insults their profession. The answer lies in a common misunderstanding of what “negligence” actually means in law.
It means failing to meet an accepted standard of conduct. The negligent person may have actually been careful and put a lot of thought into what they were doing, but they still failed to meet a basic requirement. By contrast, actually being careless or thoughtless would be the very rare medical event of gross negligence —conduct that is so reckless that it evinces a frank disregard for the patient’s well-being.
Negligence is also a one-to-one matter. The fact that an error rate cannot be reduced to zero across a population has no bearing on the fact that each individual patient—to whom a duty of due care is owed—is entitled to appropriate diagnosis and treatment within the circumstances of their own case. Conversely, the doctor’s actions must be evaluated in the context in which they occurred.
Jurors in a malpractice case will be specifically instructed on what “negligence” actually means by the judge before they deliberate. Despite how they may use the word in their own lives, before they go into the jury room, they will understand that it only means whether or not the defendant doctor met the medical standards that the specific situation with the specific patient required.
Now we can answer the most common question doctors have: “Since I never intended to harm my patient, how can I be liable for what was just a completely unintentional mistake?” Actually, negligent conduct must be unintentional.
A doctor who convinces patients to undergo unnecessary procedures to bill for those or plans a poor closure to leave a scar on an unliked patient would be conducting intentional acts of fraud and assault, not medical negligence. However, a doctor who evaluates patients improperly and performs unnecessary procedures because of an erroneous belief that they were needed or leaves a scar because of poor surgical technique despite trying to do the closure well would be conducting negligent acts.
