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How should a defense attorney combat the Reptilian Theory in a medmal case?

By Troy Bundy to Medical Malpractice Insurance

Description

In this segment, Healthcare Matters interviews ALL MD attorney Troy Bundy on the “Reptilian Theory,” one of the hottest trends employed by the plaintiffs bar in medical liability lawsuits, and how a defense attorney can combat the plaintiff attorney’s strategy.

Bundy is a hiring partner at Hart Wagner LLP in Portland, Ore., where he defends healthcare professionals against claims of malpractice, cyber-liability, HIPAA and DEA investigations, health-related business formation and contract resolution, licensing board matters, billing disputes and privileging issues.

Bundy 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.

Question 4 of 5

Interview was recorded October 14, 2015

Transcript

Mike Matray: Hello and 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 Troy Bundy. Mr. Bundy is a hiring partner at Hart and Wagner in Portland, Oregon where he has been defending healthcare professionals since he joined the firm in 1996. Welcome to the show, Troy.

Troy Bundy: Thanks, good to be here.

Mike: One of the hottest trends employed by the plaintiff’s bar in medical liability lawsuits recently has been the reptilian theory. Can you explain the concept of the reptilian theory, how it influences juries and how the defense counsel can diffuse this strategy?

Troy: The reptilian theory pokes its head in from time to time into my trials and into the discovery process. Basically, as I understand, and I’ve read through a couple of the books out on it, one in particular called “Reptile” which I’ve read over just so I can stay on top of their game. The idea is that, in a nutshell, you want, if you’re the plaintiff, to talk about safety and protecting the public and making sure procedures are safe and standards of care exist as a safety measure. During the course of discovery, you might hear questions in a deposition like, “Is this safe practice?” or, “You do that because it’s the safe way to do it, right, doctor?” That kind of stuff comes in all of the time, but safety is not synonymous with the standard of care and that’s the fallacy.

The story that the plaintiff’s attorneys that use this strategy are trying to sell us is that, “Hey, this is all just about safety and this doctor was unsafe, therefore they should have to pay a lot of money.” They are appealing to this reptile part of the brain that they call, which is that jurors are ultimately self-interested and want to protect themselves and their families and their loved ones from events like this occurring to them or others in the future. So, that’s basically the theory behind it.

My experience with it is that it doesn’t really work, at least in our setting. The objections that I raise during trial are typically, “I object. That’s not the standard of proof. Safety is irrelevant.” Most of my witnesses are prepped to deal with the safety type questions. The prep I typically discuss with the expert, if it’s appropriate, is that medicine itself, a surgery for instance, is not safe. Nothing is as safe as the jury wants to hear it is. There are risks and there are degrees of risk to every type of procedure that a patient can undergo. Some things have a higher risk than others. Ultimately, it boils down to surgical judgment or physician judgment depending upon the procedure we are talking about. I think that the best approach, at least the one that has worked the best for me, is to kind of turn the argument on its head and have the response be, “Well, your use of the word ‘safe’ is confusing to me. It implies that doing it another way is unsafe.” Here’s the deal. As a physician there are degrees of risk. Some risks are worth taking and others are not. Some procedures are very risky, but there is no other options. Some procedures, there are different ways to do it, they both have different kinds of risk, but each one is extreme.

So, I think breaking down the question into terms of risk, rather than safety, because safety really isn’t a fair thing to ask about, especially when you are talking about a medical setting. It allows the physician to answer the question fairly which is really what it’s about. Most of the time, I’ve seen the plaintiff’s lawyers dabble in this idea, using the reptile strategy as they call it, but they usually abandon it after a few objections are sustained and if the objections aren’t sustained, then I will attack the theory head on with my redirect examination of my own witness. It usually comes out in cross-examination and I’ll just say, “There was all this talk about safety, safety this, safety that. When someone asks you, ‘Is this procedure safe?’ If a patient were to ask you that for instance, what would your response be?”

That gives them the ability to start talking about, “Hey, there are no guarantees in medicine,” which is typically a standard jury instruction, “We don’t guarantee a cure. We are invading your body when we are performing surgery” or, “Something significant is happening to your body that we are trying to deal with,” whether it be a birth or some other procedure like that. So, it’s all about explaining to the jury that this isn’t all fun and games. There is always a risk. There is a risk in getting a tetanus shot. You can get an infection. You can have any number of things occur as a result of that. You can develop an abscess. So, no matter how small a procedure, there is always a risk that you cannot completely eliminate.

Mike: So, basically you are trying to redirect the jury’s attention to the fact that the standard of care is the question in front of them.

Troy: Right, yeah. It’s not about safety. It’s not even about what is safer than something else. That question in medical terms doesn’t make sense.