Killing The Snake: Countering The Reptile Theory in Medical Malpractice Cases

1. Killing The Snake:Countering The Reptile Theory in Medical Malpractice Cases Thomas M. Rockwell Rockwell & Kaufman, L.L.C. TMR@RockwellandKaufman.com

2. “The oldest and strongest emotion of mankind is fear.” -H.P. Lovercraft

3. Fear, Instinct, Survival

4. Reptile: New Theory?

5. It’s Everywhere!

6. It’s Everywhere! Medical Malpractice Commercial vehicles Products liability Premises liability General torts

7. Seen It Before • “This case has heat!” • Instinct as to jury appeal • Some stereotypes work • Different • Based on direct research • Focused approach • Detailed • Numerous tools developed

8. Reptile: What’s New? • 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

9. Major Axiom “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.

10. What’s New? 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

11. The Essence Of Reptile Safety Rules Policies Order of society Expanding case beyond facts Ultimately make the case about the jurors

12. All About The Rules 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

13. 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

14. All About The Rules JCAHO Medicare Medicaid Polices & procedures Licensing & credentialing State regulatory boards COMMON SENSE

15. Reptile At Work • Discovery • Appears irrelevant • Expansive • Other acts or omissions • Policies • Inner working of institution

16. Reptile At Work • Depositions • General rules • ”…needlessly endanger…” • Specific rules • Policies • Regulations • Best practices • Hypothetical questions • Beyond facts of case • Sticky web

17. 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)”.

18. 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

19. Snakebit

20. 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

21. 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

22. 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

23. Pest Control

24. 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

25. 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

26. Pest Control • Preparation, preparation, preparation • Know the rules • Know the medicine • Know the policies and procedures • Know the defendant

27. Pest Control • Prepare the witness • Witness must know all rules and procedures • Avoid hypothetical questions • Sincerity • Competency • Personalize

28. 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’