When you work at your office, you are wearing two legal hats: physician and business owner. Failure to meet your medical duty to a patient carries liability for professional negligence, while a failure to keep your premises safe carries liability for ordinary negligence that can apply in any business setting.

Whether an event in a medical office constitutes professional negligence or ordinary negligence is of great strategic importance to both sides. It is better for the doctor that the claim be for professional negligence and for the plaintiff that it be for ordinary negligence.

A doctor would prefer a claim be presented as professional negligence because these actions are more logistically difficult for plaintiffs. They come under shorter statutes of limitation and have pre-requisite steps. They require expert testimony, a significant expense. In many states, they are also subject to capped damages.

The scope of who can sue for professional negligence is also much more limited. Such an action can only be brought by or on behalf of a patient. By contrast, anyone who legitimately comes to the office other than a trespasser can sue for ordinary negligence. Defining the separation between the two species of negligence when an event occurs in a medical office is therefore essential.

Professional negligence relates to specialized knowledge that has to be proven by expert testimony, while ordinary negligence is based on common knowledge that the trier of fact—a jury or judge—will have on their own.

When it comes to patients, though, there is another level of analysis: how intrinsic the injuring event was to medical care. The more that this is the case, the more likely it is that the claim will come under professional negligence. The reason for this is that the medical duty of care to a patient includes providing a safe environment within which medical treatment can be carried out.

A problem exists in transitional events that occur after the appointment has entered its medical phase but before care has started. In such cases, a court would assess how intrinsic to the medical care that very specific situation was.