As plaintiff attorneys become more aggressive, we often see claims for gross negligence and even willful misconduct in lawsuits against physicians in addition to the more typical claims of ordinary negligence, i.e. medical malpractice. This tends to be the case particularly in states where tort reform is more effective in otherwise limiting liability.
In medical practice, understanding the difference between gross negligence vs willful misconduct can make a huge difference in everything from malpractice insurance to understanding the legal risks you may face. The two terms are often used interchangeably, but legally have different implications. Fully understanding what these two terms mean is vital to protecting yourself, your patients, and your practice. In this blog post, we’ll define both gross negligence and willful misconduct.
Gross negligence is defined by Cornell Law as “a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm.” The Law Dictionary describes it as “carelessness which is in reckless disregard for the safety or lives of others.” Essentially, it’s acting in a grossly negligent manner with a blatant disregard for the well-being of patients or employees in medical practice. However, it does not necessarily imply that there was an active intent to do harm.
Willful misconduct, on the other hand, is defined in U.S. code, as “an act involving intentional wrongdoing or known violation of a standard.” The Cambridge Dictionary offers a simpler definition: “bad behavior done intentionally or deliberately.”
Willful misconduct goes beyond negligence or gross negligence. It implies knowledge of and intent to do wrong. It also carries significantly more weight in either civil or criminal cases.
In this article, we’ll help you:
Gross negligence is a legal concept used when someone’s actions, or lack thereof, show reckless disregard for the safety, lives, or rights of others.
Key definitions:
This is not the same as ordinary negligence, which can result from a simple mistake, or lapse in judgment. Gross negligence implies you knew or should have known better—and still acted recklessly. Gross negligence might be asserted in cases for professional malpractice, such as medical or legal malpractice, when a reasonable person would assume a highly skilled and trained professional to have sufficient knowledge to have avoided what happened.
Importantly, however, gross negligence does not necessarily imply intent to do harm, but that harm resulted from carelessness or disregard to consequences in the moment.
The term gross negligence traces its origins back to English common law. It was used to draw a distinction between injury or financial loss from simple mistakes, and those resulting from more extreme or malicious forms of carelessness. Over time, U.S. courts have tended to define it more narrowly. It has been linked to recklessness, conscious indifference, or behavior “bordering on willful misconduct.”
In contrast, civil law systems treat the distinction between gross and ordinary negligence as one of principle rather than degree.
Today the term most often appears in the courts in cases involving:
To help define the concept for juries, a U.S. court provided the following gross negligence example:
“A nurse ignores multiple alarms and visible signs of a patient in distress following surgery. Despite protocol and training, no action is taken. The patient dies. This pattern of disregard and failure to act constitutes gross negligence.”
Such gross negligence can lead to wrongful death cases, where proving negligence is crucial for seeking justice.
In this example, the nurse did not act with intent to cause the death of a patient. However, death was caused because they willfully ignored obvious warning signs, alarms, and alerts that any reasonable person would have noticed and been expected to act on.
Other examples that have resulted in litigation include operating on the wrong body part, despite documented procedures and warnings, and failure to heed warnings about known or suspected allergies before administering or prescribing medications.
Understanding the difference between types of negligence is critical, since both ordinary negligence and gross negligence can have significant legal and financial impacts for your practice.
A negligence claim could be made over something as simple as prescribing the wrong dosage for a common medication. It’s a momentary, but potentially costly, lapse that may not meet the threshold for punitive damages.
Gross negligence involves knowing the risks, but ignoring them and proceeding anyway, resulting in injury or worse. It’s when someone notices the brake has not been applied to a wheelchair, but chooses not to apply it, or notices the floor is wet and does not put a sign out, violating their duty of care.
In both cases, plaintiffs must prove negligence by establishing the necessary elements to make a valid claim.
It is also important to note that gross negligence is not the same as medical negligence. Medical negligence would be if a doctor suspected a patient may have a heart condition, but decided not to order tests at the time. Gross negligence would be if the doctor suspected a patient had a heart condition and was showing obvious signs of acute cardiac arrest, but decided to do nothing and see if the condition resolved on its own.
Unlike gross negligence, willful misconduct involves intent to harm, cause injury, or break the law. Using the above examples, it would be intentionally prescribing the wrong dosage of a medication.
Key definitions of willful misconduct:
Willful misconduct can lead to severe legal consequences under criminal law, including potential criminal charges.
Willful and wanton negligence is another, related legal concept that goes beyond gross negligence. However, without meeting the full requirements for willful misconduct. Willful and wanton negligence implies that an individual knew that the risks to someone’s health or life were significant, but decided to proceed anyway in violation of the standard of care– but again, without intending to cause their injury or death as the sole outcome.
Let’s take a look at a few examples of personal injury cases that might constitute willful misconduct.
Let’s say a surgeon were to intentionally use medical equipment that was known to be malfunctioning. Doing that could cross the threshold from gross negligence to willful misconduct. Such actions constitute willful misconduct, which involves a conscious disregard for the consequences.
Gross negligence would have been if the practitioner suspected the equipment was malfunctioning, but decided to proceed anyway. But because the surgeon knew that the equipment was defective and would almost certainly result in an adverse event, but proceeded anyway, the behavior could also be considered to be willful misconduct.
Another example would be a doctor who intentionally commits a medication error, despite knowing the patient had a medication allergy that could give rise to injury or death. Gross negligence would be the doctor not consulting patient records or asking the patient if there were any allergies before administering medication. Willful misconduct would be reading the chart and medical history, knowing of the allergy and symptoms that would result, and proceeding anyway.
An act of omission can rise to the level of willful misconduct if omitting information was done to hide a crime or violation of a regulation or statute.
Willful misconduct carries significant risk of both civil liability and criminal charges, both of which have coverage limitations under any type of liability waiver or insurance policy. Typically, liability waivers and insurance policies only cover damages that arise from unexpected complications that are the result of negligence, or occasionally, gross negligence.
However, the intent to do harm may void any liability waivers or be otherwise excluded under an insurance policy. Public policy generally prevents an insurance policy from covering intentional acts as they are outside the realm of accidents and thus uninsurable. Society values do not permit an individual to derive any benefit from a finding of willful misconduct.
Additionally, damages for willful misconduct may void any liability caps otherwise provided at law or stipulated in a contract, exposing the physician to personal exposure in a professional liability claim. Many medical malpractice insurance policies explicitly exclude damages awarded for willful misconduct in their coverage. Civil law systems may treat willful misconduct differently, often imposing stricter penalties compared to other legal systems.
Negligence is a central concept in personal injury law that occurs when someone fails to exercise reasonable care, thereby causing harm or injury to another person. It is a civil wrong that can impose legal liability on the defendant. To establish negligence, the plaintiff must prove four key elements: duty of care, breach of duty, causation, and damages.
Negligence can vary in severity, ranging from ordinary negligence (a simple lapse in judgment) to gross negligence and willful and wanton negligence. Gross negligence suggests reckless disregard for the safety of others, while willful and wanton negligence indicates a conscious disregard for another person’s rights and well-being. Proving these heightened levels of negligence can carry more significant legal consequences and potentially lead to higher compensation for the plaintiff. Understanding these distinctions is crucial to building a successful personal injury claim.
Negligence can be categorized into two main types: criminal negligence and civil negligence. Understanding the distinction between these two is crucial, as they carry different legal consequences.
Criminal Negligence: This type of negligence involves a breach of duty that results in harm or injury to another person and is punishable by law. Criminal negligence is typically more severe and involves actions that show a reckless disregard for the safety and well-being of others. For example, a doctor who performs surgery while under the influence of alcohol may be charged with criminal negligence. The penalties for criminal negligence can include fines, imprisonment, and a permanent criminal record.
Civil Negligence: In contrast, civil negligence refers to a breach of duty that results in harm or injury to another person but is not punishable by law. Instead, civil negligence is addressed through the civil court system, where the plaintiff seeks compensation for damages. This can include medical expenses, lost wages, pain and suffering, and other losses. Civil negligence cases are typically resolved through monetary settlements or court-ordered compensation.
In cases involving gross negligence or willful and wanton negligence, the defendant may face both criminal and civil liability. For instance, a healthcare provider who knowingly disregards a patient’s safety, resulting in severe injury or death, could be subject to criminal charges and civil lawsuits. Understanding the differences between criminal and civil negligence is essential for navigating the legal landscape and protecting one’s rights and interests.
As we’ve covered above, the difference between gross negligence and willful misconduct can be subtle, but important. To recap, gross negligence is the failure to use even basic care, with reckless disregard for risk, whereas willful misconduct implies active intent to knowingly do something wrong. One is excessive carelessness, the other is deliberate wrong doing. Both gross negligence and willful misconduct can lead to severe penalties under criminal law.
It’s important to remember that negligence and misconduct are terms that encompass a spectrum of legal concepts with varying degrees of consequence in a lawsuit or litigation. The two most commonly encountered in U.S. courts are gross negligence and willful misconduct. These terms may seem related and laypeople sometimes use them interchangeably. However, they have different meanings in a court of law.
The actions or behavior involved in both gross negligence and willful misconduct can seem similar on the surface, but the important legal distinction lies in the intent of the actor. The distinction between the two is not dependent on the pain and suffering of the injured party, but the intent of the defendant.
Gross negligence implies that harm came from severe or reckless carelessness, while willful misconduct implies an active intent to do harm or break the law.
Understanding the difference between these two concepts and how they interact with insurance policies, contractual risk, and medical liability exposure is critical. This is particularly true when they are both at issue in a lawsuit. The more egregious the disregard for risk, the more likely a doctor or medical provider may be to face litigation, where exclusions under their medical malpractice insurance policy are in play or damages caps that are otherwise provided by law or liability waivers are void.
Learn more about how Indigo can help protect you from medical litigation.
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