Negligence vs. Malpractice: What Texas Physicians Should Know

Key Takeaways

• Negligence occurs when a person fails to act with the minimum level of care that a reasonably prudent person would exercise in similar circumstances, resulting in injury or damage to another individual.
• Malpractice is a type of negligence, specific to professionals, that is typically cited in a civil claim for damages when a professional’s negligence causes patient harm.
• Texas Medical Board reviews conduct for compliance with the Medical Practice Act, which can include instances of negligence.
• The desired outcome of a civil malpractice suit is monetary compensation for the injured patient, whereas a Medical Board proceeding is concerned with ensuring patient safety through remedial or disciplinary action on the physician’s license.

At Lype, Dest & Smith, our Texas Medical Board lawyer team regularly hear from physicians who assume the words negligence and malpractice mean the same thing and are caught off guard when they discover that the Board operates under an entirely different set of rules from a civil court.

Understanding negligence vs. malpractice matters because the Board’s view of your conduct may have nothing to do with whether a patient’s lawsuit succeeds or fails or whether the patient suffered actual harm from the alleged conduct. In Texas Medical Board investigations, negligence can be a failure to meet the standard of care. The term “malpractice” refers to a breach of professional standards in the context of a civil suit.

Key Differences Between Negligence and Malpractice in Medical Practice

The two terms carry distinct meanings in the Texas legal and regulatory context:

• Medical negligence: A failure to deliver care at the level a reasonably skilled physician would provide under similar circumstances.
• Malpractice: Refers to the legal claim filed by a patient in civil court in pursuit of damages due to a negligent act that causes patient harm.

Each system also pursues a different goal:

• A Texas Medical Board proceeding focuses on whether the physician’s conduct puts patient safety at risk and/or violates licensing rules and statutes.
• A civil malpractice suit aims to compensate the affected patient.

From a patient’s perspective, the bar for filing a civil malpractice suit against a physician is significantly higher than for filing a Medical Board complaint. A civil malpractice suit requires that the patient/plaintiff find an attorney that believes the malpractice claims can be demonstrated, that damages can be proven, and that the amount of damages and likelihood of prevailing is acceptable. A Texas Medical Board investigation, since it is not primarily concerned with compensating the patient, frequently proceeds in circumstances where a civil malpractice suit is unlikely.

In case you still have questions about how a civil claim and a Medical Board Investigation work, see our blog Medical Board Investigations vs. Malpractice Claims: What’s the Main Difference?

When a Standard of Care Concern May Trigger a Texas Medical Board Investigation

Standard of care issues are a frequent subject of Texas Medical Board complaints and investigations. In these cases, a licensee is faced with defending the care provided regardless of whether the patient was injured and regardless of whether the treatment was successful.

A comprehensive and reasoned response to the initial complaint letter is vital, as it is the earliest opportunity to rebut the standard of care allegations and prevent a formal investigation, where the care is subject to greater scrutiny and expert review.

Once a formal investigation is initiated into standard of care concerns, the TMB assigns the case to an Expert Panel, board-certified physicians in the same or a similar specialty, who will review the medical records and all other relevant materials. If the panel finds the physician’s actions did not meet the generally accepted standard of care, the case moves to the Litigation Section and is scheduled for an Informal Settlement Conference (ISC). Prior to the ISC, the licensee will have an opportunity to submit additional rebuttal evidence for the Panel’s consideration, and the ISC itself gives an opportunity for the physician to directly address the care provided.

How Negligence Allegations Can Impact Your Medical License

If a standard of care violation is found by the ISC panel, the scope of potential discipline is wide and depends on many factors. Where an isolated standard of care violation with little to no actual patient harm might warrant a sanction of continued medical education courses and a small fine, a pattern of standard of care violations involving multiple patients and greater levels of harm might yield a license restriction, license suspension, or even revocation in the most severe circumstances.

Under Texas Occupations Code Section 164.001, the Board can take any of the following actions against a physician’s license:

• Issue a public reprimand
• Suspend or revoke a license
• Restrict the type of medicine a physician can practice
• Require treatment or counseling
• Mandate additional medical education
• Impose financial penalties

Public orders appear on TMB profiles and trigger reports to the National Practitioner Data Bank, which Houston-area hospitals and insurers use for credentialing. Statutory guidelines require the Board to impose harsher penalties, including permanent revocation, for physicians with previous disciplinary records.

Facing Allegations of Negligence? Speak With Lype Dest Smith Lawyers in Houston Today

Whether the concern involves a negligence allegation, a standard of care dispute, or a civil filing running at the same time, our Medical Board Defense attorneys bring experience from inside and outside the TMB process to every Houston case we handle. Call Lype Dest Smith Lawyers at 512-881-3556 to schedule a consultation before your next deadline.

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Dan Lype

Not afraid to go to court when necessary, Dan has successfully litigated cases all the way to the Supreme Court of Texas. Dan also prides himself on being readily available to clients throughout their cases. He strongly believes effective representation should be a collaborative effort between a client and their attorney.

Years of experience: 15 years
Justia Profile: Dan Lype
Bar number: 24065658
Location: Austin, TX