Killing The Snake: Countering The Reptile Theory
in Medical Malpractice Cases
Thomas M. RockwellRockwell & Kaufman, L.L.C.
“The oldest and strongest emotion of mankind is fear.”
-H.P. Lovercraft
Fear, Instinct, Survival
Reptile: New Theory?
It’s Everywhere!
Medical Malpractice
Commercial vehicles
Products liability
Premises liability
General torts
It’s Everywhere!
“This case has heat!”
Instinct as to jury appeal
Some stereotypes work
Different◦ Based on direct research◦ Focused approach◦ Detailed◦ Numerous tools developed
Seen It Before
David Ball & Don Keenan◦Direct psychological approach◦Jury research
Rifle shot strategy to appeal to base instincts
Reptile brain = primitive survival instincts
Focus on danger and safety
Reptile: What’s New?
“When the Reptile sees a survival danger, even a small one, she protects her genes by impelling the juror to protect himself and the community.”
-Reptile: The 2009 Manual of The Plaintiff’s Revolution, p. 17.
Major Axiom
Not simply an appeal to emotion Strategy to use fear for juror to find safety Justice = community safety Large verdicts = safety By product is feeling of safety and well-
being
What’s New?
Safety Rules
Policies
Order of society
Expanding case beyond facts
Ultimately make the case about the jurors
The Essence Of Reptile
Rules determine safety
Rules keep the community and jurors safe
Rule concept is not only learned but intuitive
Best rules are simple and clear
Failure to follow rules causes danger / injury
All About The Rules
Umbrella rule◦ Foundational rule◦ “A (medical provider) is not allowed to needlessly
endanger the public.”
Specific rules◦ Each violation supports umbrella rule◦ Common sense – rules should be followed
Even basic rules can be problematic◦ Charting◦ Differential diagnoses
All About The Rules
JCAHO
Medicare
Medicaid
Polices & procedures
Licensing & credentialing
State regulatory boards
COMMON SENSE
All About The Rules
Discovery◦Appears irrelevant◦Expansive◦Other acts or omissions◦Policies◦Inner working of institution
Reptile At Work
Depositions
◦ General rules ”…needlessly endanger…”
◦ Specific rules Policies Regulations Best practices
◦ Hypothetical questions Beyond facts of case Sticky web
Reptile At Work
Trial◦ Opening statement
Start with general rules “Every care provider should not needlessly put the
patient at risk.”
Incorporate umbrella rule to specific rule “Every care provider should not needlessly endanger
patients by (insert specific rule)”.
Reptile At Work
Trial
◦ Witnesses Experts – general rules and common sense Fact – general rules and hypocrisy
◦ Closing Essentially “Golden Rule” argument in disguise “Without full compensation no one is safe.” Dangers shown in the case effect the community and
thus the jurors Quotes and pontification
Reptile At Work
Snakebit
Oden v. Springhill Memorial Hospital
◦ Mobile County, Alabama
◦ Following coronary bypass surgery, patient coded. Nursing staff delayed calling physician while responding to the code. Patient died.
◦ Plaintiff focused on issues with electronic records and alleged they were altered.
◦ Plaintiff successfully argued that a “bad” nurse caused the death as a result of improper training and supervision.
◦ $15 million verdict
Snakebit
Douglas v. Heartland, HCR ManorCare
◦ Kanawha County, West Virginia
◦ An 87 year old nursing home resident died after suffering several falls, dehydration and head trauma
◦ Plaintiff focused on multiple and repeated rule violations including lack of staff
◦ Plaintiff painted the picture of a wealthy company endangering helpless residents for profit motives.
◦ Safety rules were ignored because of greed
◦ $90.5 million verdict
Snakebit
Juno v. Thomas Hospital
◦ Baldwin County, Alabama
◦ Patient died after receiving a lethal dose of insulin. Plaintiff alleged that an outsourced transcriptionist in India made an error in copying the prescribed dose.
◦ Plaintiff showed the violation of a very basic safety rule.
◦ Plaintiff argued a desire to save money by outsourcing caused the death and thus safety violation.
◦ $140 million verdict
Snakebit
Pest Control
Attack it where it lives
◦ Restrict irrelevant or expansive discovery
◦ Personalize the individual and institution
◦ Motions in limine “Golden Rule” Irrelevant and prejudicial
◦ Subtly de-personalize plaintiff
◦ Focus on differences between plaintiff and jurors
Pest Control
Use its strategy against it
◦ Show hypocrisy in plaintiff and counsel◦ Show danger of plaintiff’s actions◦ Reveal “true motive” – greed
Choose your environment
◦ Don’t focus on the general rules but facts in the case◦ It is all about the medicine◦ Make defendant’s actions clear to jurors◦ Defendant can teach the jury
Pest Control
Preparation, preparation, preparation
◦ Know the rules
◦ Know the medicine
◦ Know the policies and procedures
◦ Know the defendant
Pest Control
◦ Prepare the witness
Witness must know all rules and procedures
Avoid hypothetical questions
Sincerity
Competency
Personalize
Pest Control
Illustrate standard of care
◦ Via defendant◦ Use to gain credibility◦ Professorial role◦ Circle back in closing and jury instructions
Risk vs. benefit analysis
◦ Medical providers use it◦ Everyone including jurors use it daily
Credibility
◦ Attorney◦ Defendant◦ Witness’
Pest Control
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