Article by Richard Margulies, Esq.
Overview of Reptile Theory
A plaintiff’s attorney utilizes reptilian tactics throughout the litigation process in order to shift jurors’ focus to a defendant’s disregard of “safety rules” and away from the applicable standard of care. In turn, this paints the defendant as a bad actor deserving of punishment for the “danger” they pose not only to the plaintiff, but also to the entire community. In medical malpractice cases, one author notes the following: “jurors can forgive physician judgment if the judgment turns out to be thoughtful but wrong. The reptile theory seeks to erode physician judgment and the standard of care and instead insert rigid absolute safety rules.”[1]
Overall, reptile theory claims that jurors’ perceived threat to their own safety leads them to render large verdicts against a defendant. If reptile tactics go unchecked by defense attorneys, plaintiffs’ attorneys can effectively evade the “Golden Rule,” which prohibits attorneys from requesting jurors to analyze claims based on how they would wish to be treated.[2] During depositions, reptile-based questioning frames the standard of care into a safety issue and attempts to get the deponent to admit to liability by agreeing that someone strayed from a safety rule.
Reptile-Based Questions in Medical Malpractice Cases & How to Recognize Them
Countering reptile questioning boils down to avoiding traditional deposition prep; namely, defense attorneys should counsel their witnesses to avoid whenever possible “yes” and “no” responses to questions about patient safety and danger rules. As one source notes, “yes” or “no” answers may cause deponents to inadvertently trap themselves “deeply into an absolute, inflexible stance that omits circumstances and judgment.”[3] Instructing a witness on how to recognize the bait—the oversimplified safety and danger rules—is the first and most crucial defense mechanism. Reptile theory questioning in depositions usually follows a three (3)-step structure:[4]
- The Setup Stage: establish general, absolute safety and danger rules and get deponent to agree with them (e.g., “You agree that exposing a patient to unnecessary risk is dangerous, correct?”);
- The Linking Stage: link safety and danger rules to specific conduct at issue in the case (e.g., “You agree that a hospital must have enough nursing staff to keep patients safe and to prevent unnecessary harm, correct?”);
- The Gotcha Stage: elicit answers from deponent demonstrating behavioral inconsistency and departure from previously agreed upon safety and danger rules (e.g., “So you agree that your hospital’s failure to maintain a sufficient nursing services staff on the date of the plaintiff’s injury needlessly endangered the plaintiff and violated a safety rule, correct?”).
In sum, defense attorneys should counsel their witnesses that plaintiffs’ attorneys will “relate the general safety rules to specific safety rules and . . . connect the specific violation to the general rules.”[5]
One deposition in an Illinois medical malpractice case is particularly illustrative of the types of general rules that the plaintiff will later use against the defendant:
Q: Would you agree…that medical errors can be done away with by rules of care?
A: No.
Q: Would you agree rules of care are based on protecting the safety of patients?
A: Yes.
Q: Would you agree that safety is integral to the care of all physicians?
A: Yes.
Q: Do you agree that a physician or doctor is not allowed to cause unnecessary or needless danger to a patient under his care?
A: Yes.
Q: The reason for this is a patient’s safety and physical well-being?
A: Yes.
Q: And the reason the standard of care exists is for a patient’s safety, true?
A: The standard of care isn’t just for patient’s safety, it’s for–it’s much more than safety, it’s for improving one’s health.
Q: Yes. Which is paramount to the standard of care includes the patient’s safety, true?
A: Yes.
Q: A prime responsibility of a doctor is the safety of his patient, true?
A: Yes.[6]
The above questions do not involve specific facts or what care is appropriate. Rather, the plaintiff’s attorney is getting the deponent to agree to a series of seemingly common sense questions that establish broad safety rules, but not the standard of care.[7] Here is another example:
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 needlessly endanger a patient?
A: Yes.[8]
Additional questions to counsel a witness to be wary of include the following:
Q: You agree that safety is a top priority, right?
Q: A prudent physician does not needlessly endanger patients, correct?
Q: There are hospital guidelines and bylaws designed to keep people, such as plaintiff, or any other patient safe, correct?
Q: Violating safety rules is never prudent, correct?
Q: There are specific safety rules that a physician must follow, correct?
Q: Physicians who violate safety rules are a safety concern for everyone, correct?
Q: Do you agree that if a physician violates a safety rule, that person should be held responsible for his or her actions?
Q: Do you agree that if a physician violates a safety rule and causes injury or death to a patient, that physician or hospital should be responsible for the damages caused?[9]
Now, shifting away from general safety and danger rules, here are examples of “linking” questions:
Q: If a patient’s status changes, the safest thing to do is ______ right?
Q: If a patient is having chest pain and shortness of breath, the safest thing to do is _______ right?
Q: You agree with me that when _______, the patient is in immediate danger, correct?
Q: You agree with me that a physician should review test results immediately, because any delay would put the patient at risk, correct?[10]
Preparing the Witness:
- Never Just Say “Yes”
This rule is simple: instruct the witness to never answer with just “yes” to questions related to patient safety, as this primes the plaintiff’s attorney to have the witness agree to inviolable safety rules. This is generally counter to the common deposition preparation, in which we instruct witnesses to give short answers in response to questions, but it is important not to be trapped into simple yes or no answers when responding to reptilian questions. Even if there is no choice but to agree with the question that has been asked, the witness should offer a complete sentence response that at least restates the question. If a plaintiff’s attorney starts to insist on a “yes or no” answer, prepare your witness to begin answers with responses such as, “It depends on the clinical circumstances.” The “it depends” answer is extremely useful in having a witness respond to broad questions, in which the attorney tries to box the witness in before addressing the specific facts of the case. Additionally, rather than giving a simply yes or no answer, the witness should try to put the response in context, such as stating, “I do not think that I can answer ‘yes or no’ to that question” and then pivot to giving a more expansive answer.
Elaboration or qualifiers are key because unlike the narrative the plaintiff wishes to paint, safety rules are not concrete. Prep the deponent to provide nuanced responses from the very start of questioning. This is because initial agreement to a broad safety rule, then backtracking and claiming that the rule does not apply to the specific facts of the case, can make the deponent appear evasive or lacking in credibility.
- The “Safety Rule” Is Never Simple
The totality of the circumstances, the patient’s unique medical history or complex diagnosis, and most importantly, the standard of care, work in tandem with patient safety rules. Deposition preparation should focus on the deponent’s ability to explain that policies, procedures, the standard of care, and the physician’s judgment all function together to ensure patient safety.
A witness should be reminded that each decision that a person makes involves some safety risk, and almost every rule has an exception. Medical providers cannot and should not be expected to completely protect patients from risks related to medical care. For example, if a witness is asked a question about whether it is the goal to keep a patient safe or protect a patient from harm, they should respond with an answer such as, “that is the goal, but that is not always possible.”
- The Defendant’s Conduct Was Reasonable
The fundamental rationale of plaintiffs’ lawyers in employing focusing on “safety rules” in depositions is to move the focus away from whether care is reasonable to whether everything possible was done to protect a patient’s safety. A frequent example is the approach taken in some depositions is that where there is a laboratory, imaging or other test that can be done to diagnose a patient’s condition, it must be done to protect a patient from safety.
Witnesses should be reminded that the legal standard in a malpractice case is whether a medical provider acted in accordance with the standard of care, which is defined as what a reasonable medical provider would have done under the same or similar circumstances. For example, someone coming into the Emergency Room with back pain could have a musculoskeletal problem or something much more serious such as a spinal infection or tumor. Not everyone receives the same workup since the patient’s history, exam, and other findings will dictate the course of treatment.
When asked questions about patient safety, witnesses should try to reframe the response in accordance with what would considered reasonable. Do not allow the witness to give into hindsight bias (perceiving an event was more preventable after the fact). Instead, prepare them to discuss the reasonable measures taken in response to the situation. Coach witnesses to describe action/inaction in terms of risk management, not risk elimination.
Preparing the Witness: Rehearse Responses
- Fighting the “Setup Stage”
After instructing the witness on how to spot reptile questioning and how to respond to such questions as noted above, defense attorneys should next arm the witness with responses to general safety and danger questions. Present the witness with two options: (1) avoid absolutes (e.g., “Minimizing patient risk is one priority we strive to achieve, among others.”) or (2) request specificity (e.g., “Safety is a broad term, can you be more precise?”).[11] The first option should be the first line of defense, because repeatedly requesting specificity may give the impression of a defensive or uncooperative attitude towards the plaintiff’s attorney.
- Fighting the “Linking Stage”
Even if the witness avoids absolutes, the plaintiff’s attorney will likely continue with reptile questioning and proceed to link safety rules to certain conduct. The deponent should have a good understanding of the facts of the case in order to not only provide truthful and accurate testimony but to counter “linking” tactics too. Prepare the witness with responses that incorporate circumstances, judgment, and the standard of care (e.g., “Not necessarily, as every situation is different. In the plaintiff’s case, the circumstances called for ________ because ______.”).[12]
Consider the question, “Doctor, isn’t it true that you did not consider a DVT in this case?”[13] The plaintiff’s attorney is attempting to link the deponent’s actions (the doctor may very well have ruled out a DVT when the patient presented with their symptoms or test results) to the poor medical outcome. “Yes, that is correct,” is too simple of a response because the plaintiff’s attorney could frame it “as an admission that [the doctor] had already ruled out DVT before performing a clinical evaluation, thereby suggesting negligence.” Instead, the deponent should respond truthfully with “just the right amount of context” and avoid “overshooting the mark by volunteering excessive information or sending a message of defensiveness of aggressive correction.”[14] A well-prepared answer would be, “A DVT is always a possibility, but the clinical presentation did not point to a DVT, so after my evaluation, I considered it very unlikely.”[15]
- Fighting the “Gotcha Stage”
If plaintiff’s counsel’s line of questioning nevertheless reaches this point—fishing for an admission of fault or negligence—the witness can still avoid becoming a victim of reptile questioning. Responses in this stage would be highly specific to both the facts and the deponent’s role (physician, eyewitness, corporate designee, etc.), so attorneys should prepare witnesses accordingly. Overall, instruct the witness to answer truthfully, but where possible, discuss how the action/inaction aligned with the applicable standard of care or mention facts of the case that refute any element of the medical malpractice claim.
Damage Control: How Attorneys Can Stop Reptilian Strategy in Depositions
If the deponent begins falling victim to reptilian-style questioning, defense attorneys can intervene to prevent agreements to broad safety-ism and danger rules that ignore the standard of care. During depositions, medical professionals may feel that the death of a patient or poor medical outcome is an “inherent reflection of the care that patient received” and become less confident in their answers (despite adequate preparation).[16] Defense attorneys should make sure to object to form where reptilian/safety questions are posed, both to preserve objections for time of trial as well as to remind the witness to be careful with such questions (as should be discussed during the prep meeting). If the questions appear repetitive and/or harassing, the attorney should consider objecting and instructing the witness not to answer and/or seeking to clarify the question to steer it to the facts of the case.
Once the defense attorney notices the deponent answering “yes” to consecutive questions without giving a nuanced answer, he or she should request a break and meet privately with the witness to reinforce the approach to handling such questions.
Examples of Reptile Theory Questions and Suggested Answers:
Q. Safety is always a top priority, correct?
A. Safety is one of several goals; however, we strive to improve patients’ health. That was accomplished here by [discuss what was done to achieve the best clinical outcome for the patient].
Q. A prudent physician does not needlessly endanger his/her patient?
A. Medical care typically involves some degree of risk, but it is correct that doctors should not needlessly endanger his/her patient.
Q. You would agree that your goal in providing care is to keep a patient safe?
A. Our goal is to keep or try to return the patient to health, and part of that is to keep the patient safe, though we can’t always protect patients from harm.
Q. Wouldn’t you agree that if there is a test you can order to keep a patient safe, you have the obligation to order that test?
A. No. We order tests that are clinically indicated based on the patient’s [presentation/history/exam].
Q. When you see a patient who presents to the ED with back pain, you would agree that the safest thing to do is perform imaging since the patient could have a spinal infection?
A. Whether imaging should be ordered depends on the clinical circumstances.
Q. You agree with me that a physician should review test results immediately, because any delay would put the patient at risk, correct?
A. I agree that a physician should review results of tests that they order for patients, but how quickly those results need to be reviewed depends on the clinical circumstances.
[1] Laura D. Eschleman & Michael A. Gross, Slash Back and Speak the Defense Narrative: Do Not Let Your 30(b)(6) Deponent Get Snaked, DRI For Def. 37, 38 (May 2019), https://cogentedge.com/wp-content/uploads/2020/06/FTD-1905-Gross.pdf.
[2] What Attorneys Need to Know About Reptile Theory, Thomson Reuters (Sept. 19, 2022), https://legal.thomsonreuters.com/blog/what-attorneys-need-to-know-about-reptile-theory/.
[3] How to Prepare Your Witness to Identify and Avoid Reptile Attacks, Courtroom Sciences, Inc., https://www.courtroomsciences.com/blog/litigation-consulting-1/how-to-prepare-your-witness-to-identify-and-avoid-reptile-attacks-500 (last visited June 12, 2024).
[4] See Eschleman &Gross, supra note 1, at 39-40; see also Bill Kanasky, Derailing the Reptile Safety Rule Attack: A Neurocognitive Analysis and Solution, Courtroom Sciences, Inc. (2015), https://www.ncada.org/resources/CLE/AM18/Seminar%20Materials/II.%20BK%20-%20Derailing%20the%20Reptile%20Safety%20Rule%20Attack.pdf (laying out four “phases” in the reptile cross-examination method and deposition questioning). The two approaches essentially function the same, with the second involving more psychological processes.
[5] Heidi E. Ruckman, Disconnecting Jury from Emotion: How to Prepare Witnesses for, and Protect Them from, the Reptile During Trial, 59 No. 12 DRI For Def. 70 (Dec. 2017).
[6] Id.
[7] John R. Crawford & Benjamin A. Johnson, Outsmarting the Lizard: Strategies for Responding to Reptile Theory Questions, 57 No. 12 DRI For Def. 70, 71 (Dec. 2015), https://lommen.com/wp-content/uploads/2017/04/Strategies-for-Responding-to-Reptile-Theory-Questions.pdf.
[8] An Overview of Reptile Theory in Medical Malpractice, LNCtips.com, https://www.lnctips.com/reptiletheory.html (last visited June 12, 2024).
[9] See Crawford & Johnson, supra note 7, at 71.
[10] M. Jansen Voss, Defense Strategies to Counter Reptile Trial Tactics, Christian Small (June 14, 2022), https://csattorneys.com/2022/06/14/defense-strategies-to-counter-reptile-trial-tactics/.
[11] See Kanasky, supra note 4; see generally Dr. Ken Broda Bahm, The Reptile Question: Give a Good Answer, Your Trial Message (Aug. 27, 2020), https://yourtrialmessage.com/the-reptile-question-give-a-good-answer/.
[12] Id.
[13] David Metz & Brianna Smith, The Truth Told Well: Medical Malpractice Witness Preparation, IMS Legal Strategies (July 25, 2024), https://imslegal.com/articles/medical-malpractice-witness-preparation.
[14] Id.
[15] Id.
[16] Id.