An Overview of Reptile Theory in Medical Malpractice

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LNCtips.com: An Overview of Reptile Theory in Medical Malpractice


Reptile Theory is a neuropsychological strategy used by plaintiff attorneys to successfully win huge settlements and jury awards for their clients, even when the facts of the case don't merit large damages.  Reptile Theory was first described in 2009 by Keenan and Ball (more about them later).  The theory has rapidly become a boon for plaintiff attorneys and a bane for defense attorneys. As for LNCs, there are implications for them as well.

The foundation for Reptile Theory started in the 1960s with neuroscientist Paul MacLean who theorized that the core part of the brain, the Reptilian Brain, focuses on survival and primitive instincts.  Fast forward to 2009 when Keenan and Ball applied reptile theory to litigation, including litigation of medical malpractice cases.  According to Keen and Ball, jurors respond to the alleged injury in medical malpractice cases by reacting fearfully to the plaintiff's injury, thus invoking the primitive part of their brains shared with reptiles. Furthermore, jurors see the defendant's actions as a danger not just to the plaintiff but also to themselves and to the community.  Awarding damages is a way for jurors to enhance their own safety and decrease danger to themselves and society.

Reptile Theory revolves around the concepts that: 1) Safety is governed by Safety Rules that protect people from danger. 2) Practitioners who needlessly ignore safety rules awaken the jurors' reptile brains. 3) Jurors' fear elicits their survival instincts by awarding large damages to the plaintiff, thereby protecting themselves and society as a whole.

Defense attorneys question the science behind the theory (a reptile doesn't experience fear, for example), but they don't question its effectiveness.  In fact, reptile theory provides plaintiff attorneys with a road map to use some well-known strategies to trip up defendants.

One of those well-known strategies is to get the defendant to answer yes or no without providing additional comments.  At one time, admonishing defendants to limit answers to yes or no was a standard defense strategy.  However, that is no longer the case, because carefully crafted deposition questions can get a defendant to agree to a harmless sounding rule or code, which the defendant deviated from. Then the plaintiff attorney portrays the defendant as having knowingly violated the rule.  To try to back out of his testimony at trial erodes the defendant's credibility with jurors.  Here's an example of typical deposition questions taken from Healio.com.

Q: Physicians are not allowed to needlessly endanger patients? A: Correct.

Q: That's the standard of care? A: Yes.

Q: When diagnosing or treating, do doctors make choices? A: Yes.

Q: Often several available choices can achieve the same benefit?  A: Yes.

Q: Sometimes, some of those are more dangerous than others?  A: Yes.

Q: So you have to avoid selecting one of those more dangerous ones?  A: Correct.

Q: Because that's what a prudent doctor would do? A: Yes.

Q: Because when the benefit is the same, the extra danger is not allowed?  A: Yes.

Q: The standard of care should not allow extra danger unless it might work better or increase the odds of success? A: Yes.

Q: So needless extra danger violates the standard of care?  A: Yes.

Q: And there's no such thing as a standard of care that allows you to needless endanger a patient? A: Yes.

In the scenario above, the plaintiff attorney has set the stage by getting the defendant to agree that some safety rules are inviolable.  The plaintiff attorney's next line of questioning would be show exactly how the defendant broke the inviolable safety rule.  Once the defendant's admissions are on the record, the defendant must either settle (often for an amount over the case's value) or go to trial and risk impeachment if he changes the testimony he gave at deposition.

What is the legal nurse consultant's role when it comes to Reptile Theory?  LNCs involved with writing deposition/trial questions and with witness preparation need to become very familiar with Reptile Theory.  There are numerous sources on the internet, from both plaintiff and defense perspectives. There are also witness preparation consultants available to defense law firms to assist defendants with anticipated lines of questioning.

...Katy Jones