Killing The Snake: Countering The Reptile Theory

in Medical Malpractice Cases

Thomas M. RockwellRockwell & Kaufman, L.L.C.

TMR@RockwellandKaufman.com

“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