Volume 84, Number 1
The Power of Words in Malpractice Litigation
by Donald J. Palmisano, MD, JD, FACS, Metairie, LA
are tools we use to communicate. Mark Twain said that the difference between the right word and the almost right word is the difference between lightning and a lightning bug.
Some words evoke
emotions and signify conclusions. A crafty plaintiff malpractice attorney can use such words inappropriately to sway the jury to vote against a doctor in a medical malpractice trial. My point is that words
mean something and as part of your participation in the defense of the charges lodged against you, it is in your best interest to listen carefully to the words and be certain the words are used correctly. If
the word to be used against you should be the equivalent of the ``lightning bug'' of Twain, do not let the plaintiff attorney get away with using the firepower of ``lightning.'' Already I hear you saying,
``But that is my attorney's job.'' Yes, it is, but wouldn't you like to know that she or he is on the alert? Remember, if you lose the case, the attorney goes on to defend someone else in another case and
you go into the National Practitioner Data Bank.
In short, malpractice litigation is a contest. Emotion, appearance, and credibility vie to tip the scales of justice one way or the other. The rules
of play do not guarantee a jury of peers who will evaluate the evidence in an unemotional, logical manner. Once I witnessed a judge relate the following to the jury on the first day of a physician's trial
for alleged malpractice: ``We are now going to stop for lunch. It is 11:30 and I want you to return here at 12:20. That is when the big hand is on the four.'' The physician on trial turned to me with a look
of amazement and anxiety and said to me, ``These are my peers?''
Thus, a physician on trial doesn't want to enter the contest with a handicap. Accept as a given that plaintiff trial attorneys try to
tilt the playing field to their advantage with emotional rhetoric. A powerful tool in the emotional rhetoric armamentarium for plaintiff attorneys is the use of words that signify conclusions detrimental to
Consider the following as examples of words to be on your word scan radar. Guilty, victim, and braindamaged 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. To determine guilt, the
law looks at the mens rea (state of mind). The law wants to know whether or not the actor intended the consequences of the act to occur.
Unfortunately, the perpetuation of incorrect use of words is
done on occasions by defense attorneys. Also, it is not a rarity to see judges use the phrase guilty of malpractice in the written opinion.* Physicians too often fall into this trap and use these terms, thus
aiding the cause of the plaintiff trial bar.
Let's look at a couple of more misuses of words. When the plaintiff attorney refers to the claimant as the victim, once again there is the connotation
that the defendant doctor turned a patient into a victim. Visions of ``killed this victim'' or ``sacrificed this victim'' float through the jury. It is important to clarify to the jury that such use is
inappropriate. The jury then may begin to question the fairness and credibility of the plaintiff attorney.
Another common utterance by plaintiff attorneys is the term braindamaged baby. This term is
used in trials involving a baby who is neurologically impaired. Braindamaged is used in a manner that implies that the doctor, nurse, or hospital was responsible for the neurological deficits of the baby. It
is important not to concede that the brain was damaged but rather to point out that there may be neurological impairment, if indeed there is, and to state that it has not been proven that there was any
damage to the baby's brain in the perinatal period. It is important to explain that frequently neurological impairment is a result of development anomalies.
Please heed this warning about the terms
used against you and search diligently for other words that could reduce the fairness in a trial. When you find a word you suspect as inappropriate, get the reaction of colleagues and discuss it with your
defense attorney. Eternal vigilance is no less important in the courtroom than it is for the preservation of liberty.
Dr. Palmisano is president, Intrepid Resources®/The Medical Risk Manager Company,
Metairie, LA, and a current member of the ACS Board of Regents' Committee on Professional Liability.
*See, e.g., 572 N.W. 2d508 at 513 citing a Wisconsin statute using the words ``guilty of negligence in