A Michigan court recently upheld a $3 million jury verdict in a medical malpractice suit over a baby's birth injury, rejecting the hospital's argument that the patient's attorney improperly invoked the Reptile Theory trial technique to play to the jury's emotions. The Reptile Theory is an effort to show the immediate danger of the kind of thing
the defendant did and how fair compensation can diminish that danger within the community
. Plaintiff's counsel suggested numerous times during trial that, regardless of the legal standards of care, doctors may not take "unnecessary risks" and must make the "safest available choice".
The appellate court agreed Plaintiff's counsel improperly stated an improper standard of care, concluding that the evidence was erroneously admitted; however, the court found plaintiff's use of the Reptile Theory to constitute harmless error. The court noted that the "references by Plaintiff's counsel to 'safety' and whether it was appropriate for a physician to 'needlessly endanger' a patient in the context of the doctors' testimony were limited and fleeting given the length of the overall trial." The court also concluded that the trial court's proper instruction as to the appropriate standard of care cured any impropriety so that the hospital suffered no prejudice.
This case further demonstrates that courts have a difficult time understanding the Reptile Theory and its prejudicial impact. It is imperative that your witnesses are prepared for the reptile theory and that you educate the trial court as much as possible in advance of the technique being used.
to read the full opinion.