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Medical Care or General Negligence?
When an injury occurs in a medical setting, the correct means of bringing suit to compensate the plaintiff may be a medical malpractice claim. On the other hand, it may be more appropriate to assert general negligence. The difference could prove crucial even though both causes of action require showings of a duty, its breach, causation and damages.
One such difference is many states' requirement that plaintiffs obtain an expert opinion before they may file a claim. Another important difference between medical malpractice and general negligence claims is the time period allowed between injury and the filing of the lawsuit; many state legislatures have lengthened or shortened the statute of limitations in medical malpractice cases, so that a suit for medical malpractice must be filed sooner (or may be filed later) than one for general negligence.
The stakes can be high. For example, in a state in which a medical malpractice claim must be brought within one year of injury while one for negligence may be filed up to two years after the incident in question, if the plaintiff gets it wrong and files a timely negligence claim that the court later deems to be an untimely medical malpractice claim, he's out in the cold. And if a plaintiff brings suit under a general negligence theory and, because it is not a medical malpractice claim, fails to provide the court with an expert's affidavit, the whole case may implode. Thus, courts have been asked repeatedly to settle the question ' was it medical malpractice or general negligence?
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