We have all seen the ways the pandemic has impacted litigation — it has shut down our jury trials, practically eliminated in-person discovery, and forced everyone to get comfortable with Zoom. And with these changes comes a new threat to health care practices and professionals:
The attitudes of our juries are changing (and it isn’t pretty).
In a recent poll, 84% of participants agreed that juries need to be the “guardians of the community” by forcing defendants to change their “bad behavior” with large damage awards. In other words, people are jumping on board plaintiffs’ reptilian theory of liability.
You are likely familiar with the reptilian theory of liability: plaintiffs try to scare jurors by cynically suggesting that the doctor’s conduct directly threatens the jurors and their loved ones, by focusing on “safety rules” and “danger to the community.” Under this theory, plaintiffs attempt to raise the standard of care from what a “reasonable” health care provider would do under the circumstances, to a standard of “absolute” patient safety and protection.
The best way to handle these reptilian attitudes is to be prepared and get ahead of the problem. Consider filing a Motion in Limine to preclude reference to community standards or “safety rules” at trial. Ensure that your witnesses are well-prepared to testify. Prepare witnesses to explain that all guidelines/policies/rules must be interpreted in context. Shift the focus to the patient and the alleged injury, rather than danger to the community. Finally, create a bigger Reptile Theory, i.e., explain how the physician devotes his life to caring for people in the community.
Bottom Line: In our pandemic world, the reptile is back — and its bite is bigger than ever! Though we may never eliminate the reptile, with preparation, we can keep it under control.
Waranch & Brown is here to assist you and answer any questions. Concerned about an upcoming case or trial? Please don’t hesitate to contact us.
 Janke, K. and Wolfe, D. (2021). Jurors’ Views in Pandemic Times, What Jury Research Shows, Magna Legal Services. To schedule a presentation by Magna or to set up a time for a free case consultation with a Magna Litigation Consultant, please email moc.slangam@nagEL and moc.slangam@eknaJK.