A powerful tool in the emotional rhetoric armamentarium for plaintiff attorneys is the use of words that signify conclusions detrimental to the physician. Consider the following as examples of words to be on your word scan radar. Guilty, victim, and brain-damaged baby are some of the leading examples. Consider the word guilty in this context. Guilty is an incorrect legal term in malpractice litigation.
Malpractice is a subset of negligence.
Negligence by definition is an unintentional act. The determination of negligence has nothing to do with the intention of the physician. Negligence is defined as a violated duty causing harm. Furthermore, guilty has as a major portion of its definition the intent of the actor. The law wants to know whether or not the actor intended the consequences of the act to occur.