Some authors say that Negligence and malpractice are almost no difference. The experts mentioned by Guwandi (2004) who equate between Negligence and malpractice:
1. Creighton argued that malpractice is a synonym of professional Negligence.
2. Mason-Mc Call Smith stated that "Malpractice is a term which is increasingly widely used as a synonim for "medical negligence".
Likewise, in some literatures, the term malpractice and Negligence are often used interchangeably.
Guwandi (2004) did not agree with the opinion of experts in general. According to Guwandi, malpractice has a broader meaning than Negligence, because in malpractice, besides actions included in negligence action, there are also some actions included in the category of intentional and violated the law. Deliberate malpractice is a pure malpractice which is included in criminal malpractice.
To clarify the difference between malpractice and negligence, it can be clarified by the following cases:
a. Malpractice done intentionally (malpractice in the narrow definition) or can be called as criminal malpractice which is an act / physician’s act which clearly violated the law, such as:
- Doing abortion
- Doing euthanasia
- Providing false certificate or its contents does not correspond to the actual situation
b. Negligence is a form of act that is done unintentionally, for example:
- Due to the swap of medical records, doctors mistakenly do surgery to patients.
- The doctor forgets to provide information to patients who will be done the operation, so it is done without informed consent.
In addition to the examples above, Guwandi (2004) noted that the difference between malpractice and negligence can be seen on the motive or purpose of the actions, namely;
a. In malpractice (in the narrow definition) - conscious action. The purpose has been lead to consequences or the doer does not care to the result of the actions that have been known in violating the law.
b. In negligence – The doer does not expect the emergence result of his actions. The result is out of the doer’s will and no motive of the doer for the consequences.
