The answer is neither.
Let me tell you why...
You believe a doctor caused you harm.
Here in New York.
You believe your doctor was careless.
You believe your doctor violated the basic standards of medical care.
You believe as a result of your doctor's medical carelessness, you suffered significant injury.
However, the doctor doesn't see it that way.
The doctor claims he did no wrong.
The doctor and his attorney claim that even if there was some type of wrongdoing, it did not cause your injury.
Then, they argue that your injury really is not as bad as you claim it to be.
Since the doctor is not willing to admit that he did something wrong causing you injury, you have no choice but to proceed with litigation that ultimately goes to trial.
The question I raised in the headline focuses ONLY on criminal activity.
You should know that civil lawsuits against physicians seek only money to compensate an injured patient for the doctor's carelessness.
These civil lawsuits do NOT seek to put the doctor in jail.
These civil lawsuit do NOT seek criminal penalties.
A civil lawsuit is not meant to punish the doctor but instead meant to repay an injured patient for all of his harms, losses and injuries he suffered because of a doctor who violated the basic standard of medical care.
When talking about guilt or innocence, that only refers to a criminal case.
When a prosecutor brings charges against a person being accused of committing a crime, if that case goes to trial, the end result is either they are innocent or guilty of those crimes.
Many people believe that guilt or innocence also applies to civil lawsuits.
It does not.
In fact, it has nothing to do with a civil lawsuit.
In a civil lawsuit, the person bringing the lawsuit is known as plaintiff.
The plaintiff need only show that they are more likely right that wrong that what they are claiming is true.
Put another way, it means you only have to tip the scales ever so slightly in your favor in order to justify a verdict for you.
A great analogy is if you are playing football and you are running toward the end zone.
You don't have to step fully into the end zone in order to score a touchdown. Instead, you only have to get slightly past the 50 yard line in order for a jury to give you a verdict in your favor.
In a criminal case, the prosecutor has much more difficult time of showing the accused is guilty of a crime.
She has to show beyond a reasonable doubt that the person who is accused of a crime did in fact commit them. This is a much tougher requirement than in a civil lawsuit.
New clients sometimes come in and say “I know my doctor is guilty of malpractice.”
What they are really trying to say is that “My doctor was medically negligent and caused me injury.”
Here's the process that a jury must go through when evaluating whether your doctor was careless...
At the end of your trial, the jury must answer a series of questions in order to reach their verdict.
They are NEVER asked to decide guilt or innocence.
Instead, they are asked to decide whether your doctor was negligent.
Whether your doctor was careless.
That fits into the category of whether your doctor is legally responsible for what happened.
If the jury finds that your doctor was negligent, then they must answer whether his carelessness was a cause of your injury.
Legally, that's known as causation.
“Was the doctor's negligence a proximate cause of her injuries?”
The judge will explain to the jury what negligence is.
The judge will also explain to the jury what proximate cause is.
In other words, “What was the sequence of events that led you, the injured patient, here today?”
If the jury finds that your doctor was careless and that carelessness was a cause of your injury, then they are required to answer how much money you are to receive for each element of damages you are claiming.
Getting back to the headline, a doctor who has committed malpractice by either doing something improper or failing to do something properly is NOT guilty or innocent of doing these things.
The correct phrase to use is whether he departed from good and accepted medical care.