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What is the Reptilian Theory in medical malpractice claims?

By John Degnan to Malpractice Cases of Note

Description

In this episode, Healthcare Matters interviews ALL MD attorney John Degnan on the plaintiffs’ bar using the “Reptilian Theory” in medical malpractice claims and how a good defense attorney can counter the argument.

Degnan is a shareholder at BRIGGS & MORGAN. He practices law in Minnesota, representing clients in business disputes, as well as members of the legal and medical communities in professional matters.

Johnson is a charter member of the Association of Liability Lawyers in Medical Defense (ALL MD), a nationwide organization that connects healthcare providers with attorneys who specialize in medical malpractice defense.

Interview was recorded October 14, 2015

Question 3 of 5

Transcript

Mike Matray: Welcome to Healthcare Matters, where the medical and legal communities come together to discuss healthcare matters. I’m your host Mike Matray and today’s guest is John Degnan. He’s a shareholder at Briggs and Morgan in Minneapolis, where he regularly represents clients in business disputes as well as members of the legal and medical communities in professional matters. He has more than 39 years of experience handling medical malpractice claims, prescription drug and pharmacy matters, products liability, and issues relating to EMTOLA and the Federal False Claims Act. This is Mr. Degnan’s second appearance on Healthcare Matters. Welcome back, John.

John Degnan: Thank you. Glad to be here again.

Mike: That’s fantastic. One of the hottest trends employed by the Plaintiffs Bar in medical liability lawsuits today is what’s referred to as the Reptilian Theory. Can you explain the concept of the Reptilian Theory, as well as how it influences jurors and how defense counsel can diffuse this strategy?

John: There are a couple of individuals touting as the plaintiff’s counsel around the country. And they call it the Reptilian Theory because it’s meant to apply to…or play to jurors’ more basic instincts. That is almost…they call it reptile because it’s really meant to play to basically your brain stem.

Mike: Okay.

John: It’s a reaction. And essentially the way it works is that the attempt to set up one these are the safety rules, there’s a danger if the rules aren’t followed and therefore then the jury feels like they have to address this exposure to protect the plaintiff in society. For example, they may say, “Well, isn’t the doctor’s first duty to put the patient’s safety first?” And indeed, what is important is you start answering simple questions and it’s going to become a slippery slope, and pretty soon it appears that there are a lot of safety issues that weren’t adhered to. And the way that it’s avoided by defense is not to get into the did-not did-to, type of back and forth, but rather change the theme to what your theme is. And that is the most important priority for a doctor should be to treat every patient as an individual. And so you change the circumstances. And when they say, “Isn’t it always true that you have to provide for the safety by doing,” such and such? The answer by the defendant doctor, the deposition, or a trial is, “It depends on the circumstances.” And then you always bring it back to the circumstances of that particular patient to say why it was reasonable under those circumstances. So it works sometimes, but only if you slide into playing the reptilian game with the plaintiff’s counsel.

Mike: Okay. How successful has the Reptilian Theory been? Have you seen it increasing verdicts or even judgments?

John: Well, I think that it’s probably not as successful as what’s been touted, but when it is successful it is because the physician and his or her lawyer have fallen into the trap of talking about and responding to safety issues. Safety issues and going down the road and pretty soon it looks like you’ve violated safety issues, where you don’t have to. As I said, you know it depends on the circumstances is one of the first things that should occur to the physician in answering some of those questions. When it does happen, sometimes the jury will get worked up and indeed respond by saying, “Gee, we do have to protect the plaintiff and society.” I don’t think it’s as successful as they claim, but certainly it’s one that defense lawyers and doctors have to pay attention to, so that they are able to deal with it in the appropriate way.

Mike: It’s an interesting departure from what had traditionally been this is completely a focus on the plaintiff and the damage done to the plaintiff, and how she or he needs to be made whole. Now it’s not necessarily the damage to the plaintiff as much as the potential damage to society at large. It’s an interesting departure.

John: Right. Yeah, it really is a shift from what I call, playing to a motion with the jury, to playing to this is a safety issue, we’ve got to protect from this danger and you’re the ones that can make a difference. And so it just plays out differently. Again, you just have to be aware of what they’re doing, so that you can stay on your own theme rather than fall into theirs.