Insights From Wapiti

Advice, news and thought leadership from our experts.

What Constitutes Malpractice (and What Doesn’t)

The term medical malpractice is enough to strike fear in the heart of any provider. The stakes can be high, including financial liability and even loss of license. Therefore, providers need to understand what does and doesn’t constitute malpractice.

It is Malpractice when there is:

Breach of duty

Providers are legally responsible for delivering a standard of care to their patients. This duty encompasses established doctor/patient relationships and emergencies. A specialist is expected to demonstrate an even greater skill level if it is within their area of expertise. Failure to provide reasonable care is considered a breach of duty.


Damages, including physical and emotional pain and suffering, lost wages, and medical expenses, loss of consortium (the impact on a relationship), must be directly related to the breach of duty. Punitive damages are also possible in a malpractice case if it can be proven that the provider showed disregard for the patient’s health and safety.

Lack of informed consent

For patients to make an informed decision about their treatment, they must know the full risks. It could be considered a lack of informed consent if the provider fails to disclose that information and the patient suffers an adverse outcome. Another example would be not making the patient aware of reasonable alternative treatments.

It isn’t malpractice when there are:


An emergency situation doesn’t completely absolve a provider of their responsibilities under the duty of care. However, the same standards may not apply in life-or-death cases. Making a mistake during an emergency may differ from doing so during scheduled treatment.

Unsuccessful outcomes

Medicine isn’t infallible. The worsening of a patient’s condition or even death is not necessarily the result of malpractice. Depending on how far the issue has progressed or the nature of the issue, a successful outcome may not be possible. Also, not every patient responds to treatment. If appropriate care was offered and informed consent was obtained, the provider shouldn’t be held liable.

Providers should be aware of the risks of being hit with a malpractice claim. However, they shouldn’t allow it to inhibit them from offering care. Diligently following the duty of care and keeping patients aware of the risks and rewards can help reduce the likelihood they will face a claim.

Locum providers: Let’s Work Together! Explore current opportunities at Wapiti!