By: MICHAEL PETERSON, KEENAN LAW FIRM
This month’s Reptile© Superstar is Stuart Ratzan. Stuart Ratzan received his Bachelor’s degree from Amherst College, and his Juris Doctorate from the University Of Miami School Of Law. Stuart’s love for personal injury started in his law school’s tort class. It was there that he learned about two pillars of tort law. The first being the compensation theory of tort law, and the second being the behavior modification theory.
Stuart centered his personal injury career on the behavior modification theory of tort law. The behavior modification theory teaches that tort law exists to protect the community and to incentivize the community to make safe choices. He knew that by teaching the community to make safe choices he could make a meaningful difference in people’s lives. His career as a personal injury lawyer began at Stewart Tilghman Fox & Bianchi, P.A. in South Florida. Stuart Ratzan currently works at the Ratzan Law Group where his firm specializes in Med Mal, MVC, and Product Liability cases.
Outside of the law, Stuart Ratzan volunteers at the Crohn’s & Colitis foundation of America, where he helps to bring awareness and offers support to children who suffer from Crohn’s and colitis. Stuart Ratzan shares his life with his beautiful wife and two beautiful children.
Introduction to Reptile©:
Stuart remembers having conversations, with Inner Circle member Larry Stewart, early in his career, about the theory of behavior modification and the importance of emphasizing public safety. These conversations, in retrospect, resonated perfectly with the Reptile©. As the years passed, Stuart began to notice the grip that the tort reform agenda had on the jury’s psyche. Stuart believed that Don Keenan’s “Reptile©: The 2009 Manual of the Plaintiff’s Revolution” was the answer to the tort reform movement.
Stuart was eager to implement the Reptile© in his cases. However, with each new case, Stuart realized that he was still far away from matching the purpose behind the Reptile©. Stuart figured it was time for him to attend a Reptile© seminar. During the two-day intro seminar, Stuart remembers speaking to Don about his experiences with the Reptile©. His conversation with Don ignited his commitment to the Reptile©. Stuart’s favorite Reptile© tool is Spreading the Tentacles of Danger. He finds that spreading the tentacles of danger creates the fertile ground necessary to transform an event case into a systems case. Stuart finds this transformation to be the key to inspiring Bubba to care about your case.
Facts of the Case:
This case took place in the state of Florida. Stuart represented the family of a deceased wife and mother in a wrongful death lawsuit. His client’s wife noticed blood in her urine and went to the hospital. After confirming her symptoms, the hospital admitted her. After a three-day delay, the hospital’s internal medicine physicians consulted a hematologist. The hospital ran a number of tests that revealed that she had a bleeding disorder where her blood would not appropriately clot internally. The inability to clot can be life threatening and requires immediate workup. The hospital pathologist, despite his finding that that test was abnormal and required further workup, did not document his finding and did not communicate his finding to the treating hematologist.
The hospital’s pathologist ordered additional blood testing. Instead of performing the testing within the hospital, or at a local lab, the hospital sent her blood tests to a lab in North Carolina (LabCorp). The hospital lacked any understanding of the turnaround times for the outside tests, did not order them STAT, and made no inquiry to determine how long the tests would take. It took almost a full week for the additional test results to return.
In the meantime, while her blood samples were in or travelling to North Carolina, the hospital and its physicians believed that her issues were related to kidney stones. The hospital performed an invasive procedure to locate and potentially remove the kidney stones. No kidney stones ever existed. While she was already suffering from continuous internal bleeding, the procedure caused her to bleed profusely. The test results finally arrived, but were not received or reviewed until after her procedure. The test results revealed that the client’s factor 8 level was at 1%, when it should have been anywhere from 100% to 150%. It was clear that her bleeding disorder did not stem from kidney stones, and instead she was suffering from an urgent and life threatening condition. The hospital’s choice to perform surgery without the lab results was like throwing kerosene on an open fire. The hospital took her to the ICU and labeled her bleeding disorder a factor VIII inhibitor. His client’s wife bled to death in the ICU, on her 50th Birthday, after spending 17 days in the hospital.
The defense contended that her bleeding disorder was a one in a million diagnosis. They argued that physicians are likely to go their entire career and never see this disorder. Furthermore, the defense contended that the hospital’s diagnosis of kidney stones was the more appropriate diagnosis because it was a more common diagnosis than factor VIII inhibitor.
Stuart viewed the hospital’s claims as excuses for their incompetence. Stuart found that the experts he brought from the University of Pennsylvania knew more about her disorder than her treating physicians did. Stuart argued three things. First, he argued that the turnaround times that the hospital allotted for outside testing did not comply with the hospital’s Joint Commission standards. Stuart believed that the hospital should have either done the testing on site, or sent her blood to the University of Miami, instead of LabCorp, in North Carolina, because of the university’s quicker turnaround time. Either way, the plaintiff needed the test results within hours, not days. Secondly, he argued that the hospital should have refrained from performing surgery on his client’s wife until the lab rendered their test results. Lastly, he argued that the hospital failed to follow their policies and procedures, which clearly outlines how to spot and treat a diagnosis of factor VII inhibitor. The hospital had a specific policy and procedure, which dealt directly with factor VIII inhibitor.
Pre Trial Reptile©:
Focus Group:
Stuart conducted two focus groups before trial; his first being was a narrative focus group. According to Stuart, the Keenan Ball College had a heavy influence on the organization, presentation, and analysis of his focus groups. He does not believe that his focus groups would have been as impactful without the knowledge he acquired at the Keenan Ball College. The one on one feedback he received from his peers, the techniques he learned from his instructors, and the live interaction he had with the focus group participants solidified his preparation and analysis of his focus groups. During Stuart’s last day at the college, with the help of the attorneys in attendance, he developed his bumper sticker for this case. His bumper sticker went as follows, “If you remember one thing about this case, tests delayed are a life denied.”
Stuart’s narrative focus group consisted of 16 jurors. In an effort to expose the focus group’s negative attribution, Stuart presented his case from the defendant’s point of view. The focus group questioned why his client failed to demand answers from his wife’s physicians. They could not understand why the plaintiff would allow his wife to remain at a hospital that failed to follow their procedures in regards to his wife’s bleeding disorder. Stuart addressed their concerns by asking the participants about their expectations from loved ones. Then during his focus group analysis, Stuart compared their suggestions to the actions that his client took in an effort to cover as many of their suggestions as possible.
Stuart used his second focus group to discuss the level of trust that Bubba has in doctors. He wanted to know who they thought were in the best position to eliminate the harm. As the focus group went on, Stuart learned that the focus group had concerns with liability. Many of the participants believed that the hospital should be relieved of liability if it was determined that the treating physicians were independent contractors. A big feature was the hospital’s consent form that identified the doctors as independent contractors. Stuart dealt with this issue by asking the focus group whether they believed that the consent form was designed to protect the hospital or the patient. The focus group unanimously determined that the hospital designs these forms in order to protect the hospital not the patient, and they did not like that. Stuart then showed the group the standard Florida jury instructions, which say that hospitals are responsible for independent contractors under most circumstances. It was clear towards the end of the discussion that the focus group believed that no matter the relationship, the doctor and hospital’s duties are to the patient, and if in doing their duties they harm the patient, then they are responsible for the harm.
The last issue in the case was his client’s criminal history. Stuart’s client had a background littered with criminal activity and felony convictions. Stuart knew that the jury would struggle to sympathize with his patient. In order to address this issue during the focus group, Stuart had his focus group participants discuss what they would expect from family members if they were in the hospital. Stuart took all information they discussed, and then introduced his client actions to the group. He asked them how they would feel if they heard that his client was by her bedside every day, continually seeking updates from the doctors, as well as taking care of the family chores and duties while she was in the hospital. Focus group responded well to the actions of his client. This exercise took his client “off code”, and opened the door for the focus group to begin to value his client’s harms and losses.
Witness Preparation:
Stuart’s client was an immigrant. He arrived in North America in the 1980s during the second wave of Cuban immigration. When he arrived in America, he continued to have difficulties holding a steady job. Furthermore, he possessed a significant criminal history, of which included two felony grand theft convictions. His client’s mug shot was all over the internet. He was married to his wife for 12 years, and helped to raise her two children from another marriage. They lived in section VIII housing, and neither of her children had a job.
Stuart’s client felt responsible for his wife’s death. He wanted to save his wife’s life, but he felt as though he failed. He explained to Stuart that he trusted the doctors, but he was concerned about the hospital’s decision to send his wife’s blood to North Carolina. He felt guilty for asking his wife to trust her doctors. The mother’s eldest daughter had recently delivered her child at the same hospital where her mother died. The daughter, against the wishes of her father, urged her mom to go to that hospital. The mother’s eldest daughter and Stuart’s client felt guilty for suggesting and acquiescing to that decision.
Stuart and his client had multiple witness prep sessions. Stuart challenged his client during the second day of witness prep. He asked his client, “Aren’t you supposed to trust the doctors?” His client nodded his head. Next Stuart asked him, “What did you do to cause her to die?” He responded by saying, “Nothing.” By the end of witness prep, Stuart’s client, with tears dropping from his eyes, realized that he was not at fault for his wife’s death. He understood that it was the duty of her physicians to follow the safety rules, and that their choice to ignore them led to the harm that befell his wife. The defense did not provide an offer prior trial.
Reptiling© the case:
Voir dire:
Stuart started his Voir Dire by asking the jury about their passions. He wanted to keep the mood light, and so he asked the jury whether they had ever heard jokes about trial lawyers. One of the jurors raised their hand, and said, “I heard that a good lawyer is a dead lawyer.” The jury laughed. Stuart found these two exercises to be effective at earning the jury’s trust, fostering discussion, and instituting the rat-killing machine.
Stuart also took the opportunity to address his client’s criminal past. Stuart divulged his client’s rap sheet to the jury, to which a juror asked Stuart if his client had ever physically harmed someone. Stuart informed the jury that none of his client’s convictions involved the infliction of physical harm upon another person. Stuart learned through his focus groups that it was wise to be upfront about his client’s criminal past, as it would invite the jury to be upfront about their biases in the case.
Opening: System Failures, Betrayal, Witness Prep:
Stuart told the facts of the case from the defendant’s perspective, and introduced his safety rules to the jury. The source of Stuart’s rules came from the hospital’s Joint Commission standards. Stuart’s Reptile© rules went as follows:
1. A hospital must have a system in place for diagnosing and treating life threatening conditions, to prevent harm and death to everyone.
2. When a hospital runs tests on a patient, it must do so in a timely and accurate manner to prevent harm and death to everyone.
3. Doctors and hospitals must use urgency to diagnose and treat the patient’s life threatening condition to prevent harm and death to everyone.
Stuart found it difficult to convey the harms and losses of his client in the face of his client’s criminal past in his opening. Stuart wanted to show the jury that the family’s harms and losses did not reside in a sympathy vote or in the character of his client, or the family’s socioeconomic status, but in the loss of a meaningful person in their life.
Before trial, Stuart laid out three components to his case. He determined that his case centered on the system failure, witness prep, and betrayal. Stuart had the hospital’s safety expert testify about the system failure. Stuart desired to use his safety expert to prove the standard of care, outline the system failure, and test his safety rules. Through focus groups, Stuart learned that Bubba expects the hospital to know the turnaround times for lab test, to quickly review them once they receive them, and to make adjustments in testing depending on the needs of the patient.
The defense hospital administration expert happened to be a CEO owner of a billion dollar health company. The expert’s background fit in nicely with the defendant hospital that was owned by Tenet, which is another billion-dollar company. The defense expert argued on direct that we are still in a recession, and that perhaps the hospital was trying to save money by deciding to test their patients’ blood in NC rather than the University of Miami. On cross, Stuart and his associate quickly researched some facts about Tenet (the multitude of hospitals around the country, one of the largest hospital companies in the world, annual gross revenue) and easily countered the expert’s arguments. Using the revenue of the expert’s health company, and of Tenet as an example, Stuart argued that the hospital could well afford to send her blood test to the University of Miami. Despite the expert’s stance on the cost of the test, the expert did agree with Stuart’s assertion that a hospital must have timely test results.
Through the expert testimony, Stuart was able to show the jury that the hospital refused to follow their policies and procedures. Stuart laid the foundation for his system failure by impressing upon the jury that the hospital, either through a lack of training or incompetence, chose to ignore the policy and procedures that keep patients safe in hospitals.
Stuart used an airplane analogy to drive the point home. He told the jury to imagine a pilot with an engine light, who decided to fly an airplane without going through the safety protocols necessary to get the engine fixed. Likewise, a doctor with the understanding that the patient has a bleeding disorder should not conduct surgery until they have referenced the Hospital’s Joint Commission Standards on the proper diagnoses. The safety expert agreed with Stuart’s analogy.
Stuart also used the plaintiff’s expert to spread the tentacles of danger. He had the expert describe for the jury the types of harms and complications that might occur when doctors and hospitals fail to follow the rules. The expert’s testimony revealed the seriousness of the hospitals actions. The jury saw the hospital’s actions to be purposeful and harmful. They recognized that as a potential patient in this community, they too were at risk of falling victim to the hospital’s incompetence. Stuart empowered the jury during his closing to eliminate the risk of harm in their community by returning a verdict in client’s favor.
The second issue of the case centered on the harms and losses of his client. During Voir Dire, Stuart made it clear to the jury that his client was not an upstanding citizen in the community. His client’s stepdaughters did not have jobs, and due to their socioeconomic status, the jury might consider them as a burden on the community. Stuart knew that the glue that held this family together was his client’s deceased wife. Stuart wanted to show the jury the impact that her loss had on a family, as well as their resilience in the face of sorrow.
Stuart placed his client on the stand. Stuart’s client did not possess a likable demeanor. He was an immigrant, with a criminal past, and had plenty of tattoos. He was far from welcoming on the stand. Stuart knew he was going to have his work cut out for him. During direct, Stuart worked hard to eliminate his client’s guilt. His client talked about the decisions he made at the hospital in an honest and sincere manner. By end of his client’s direct, Stuart could see that the jury connected with his client’s loss, and believed his actions to be reasonable given the circumstances of the case.
Stuart’s client kept a cool demeanor during his direct; however, he could not make it through his cross-examination without losing his temper. The defense aimed to denigrate the relationship that he had with his wife and family. They argued that his criminal lifestyle preceded his love for his family. They questioned his commitment and loyalty to his wife during her days in the hospital. Stuart’s client could not restrain the anger in his answers, and ended up losing his temper on the stand. However, this did not hurt him in the eyes of the jury. The jury witnessed his passion. They knew he was not faking the emotions he was feeling. The jury embraced the authenticity behind his reaction, and his willingness to fight for his family.
Stuart also had his client’s two stepdaughters take the stand. Their sweet demeanor was a good contrast to the client’s more emotional testimony. They expressed the love their mother showed and the sacrifices she made for them. Her children described her as a loving friend, who worked hard, and shouldered the burdens of the family. Stuart also had the stepchildren speak on the character of their stepfather. They spoke to the fact the Stuart’s client, after their mother had passed, locked himself in his bedroom for several weeks mourning the loss of his wife and to write poetry. The stepchildren’s testimony allowed the jury to identify with his clients suffocating misery and interminable love.
The last issue of the case concerned the hospital’s betrayal. A great majority of the hospital’s betrayal was evident through the actions of the hospital’s pathologist and hematologist.
The hospital’s expert pathologist had never testified in a trial. Stuart had an opportunity to depose the pathologist prior to trial; but believed it was a better strategy to spring his safety rules on her while she was on the stand. The pathologist was unprepared to answer Stuart’s questions on safety rules, which caused him to agree with all of them.
Stuart asked the hospital’s expert pathologist why he was defending the hospital’s pathology department. The hospital’s expert pathologist stated that the pathology department was not qualified to diagnose for factor VIII inhibitor, that they were only a community hospital and should not be expected to know everything. Stuart followed up by asking why she did not seek out the hospital’s policies and procedures that explain how to diagnosis for factor VIII inhibitor. Stuart finished his cross by asking whether the expert was aware that the hospital’s pathologist, whose actions were at issue in this case, was the one who wrote the policy?! The expert stated that she was unaware of who wrote the policy.
When the hospital pathologist was on the stand, Stuart pointed out that his client trusted the pathology department to follow the hospital policies and procedures, and at the very least, notify the hematologist of any differential diagnoses. Stuart expressed to the jury, that his client would have removed his wife from the hospital if he knew the pathologist was uncomfortable with the procedure, he would have ensured the report got into the hands of the hematologist; he would have refused the unnecessary surgery, if only the pathologist had been honest with them. The jury saw no excuse for the hospital to fail to properly diagnose his wife’s bleeding disorder. However, the more egregious act was encouraging his client to believe they were qualified to do so. The hematology expert was the next person to take the stand. Stuart found the hematologist liable for giving a diagnosis and clearing his client’s wife for surgery without requesting the wife’s blood tests from the pathologist and without securing the final results from the outside lab. It was clear that without the wife’s blood tests, the hematologist’s couldn’t properly diagnose the patient. The hematologist used his testimony to justify the fact that he didn’t receive the report, on the basis that the illness was rare, and the diagnosis for kidney stones was more common. Stuart asserted that it was imperative that he see the report. It would have told him not to clear her for surgery and to wait for the outside tests in order to diagnose the rare disorder.
When Stuart cross examined the hospital’s expert hematologist about his knowledge regarding factor 8 inhibitor, the hematologist expert proclaimed that he was not an expert on factor 8 inhibitor. Stuart and the jury were shocked by his response. He asked the expert hematologist how he felt qualified to give his opinion on factor VII inhibitor he admits to not being an expert on the illness. Stuart stated, “The jury has been here for over two weeks trying to get to the truth in this case, and now you say to them that you’re not an expert.” The jury was disgusted with the defense. They saw their defense tactics as disingenuous. The expert hematologist testimony impressed on the jury that the safety of their families and their community were at risk if they did not use their verdict to make a change in the way the hospital practices.
Closing:
Stuart started his closing by reminding the jury of his safety rules. He argued that the hospital set-up the hematologist and pathologist for failure. He explained to the jury how the hospital failed to train, failed to supervise, and lacked the resources necessary to diagnosis the patient. Stuart went on to explain how the hospital did not inadvertently cause the harm, but made a conscious decision to inflict harm on the patient. Despite the patient having a rare disease, the hospital had a written policy that showed their physicians how to spot and treat the disorder. However, at the same time, the hospital required their doctors to send tests out of state, causing confusion and delays and preventing accurate and timely diagnoses. Stuart made it clear that there was no excuse for the hospital to disregard their policies and procedures.
Stuart spread the tentacles of danger by informing the jury that the hospital’s corporate owner has over 80 hospital locations around the country, with the same protocols and expectations as the hospital in this case. He explained to the jury that by making a difference in this case they would be making a difference in every state in the nation. Stuart wrapped up his closing by stating, “The simple truth is, conduct rewarded is conduct repeated, and we don’t want that here or anywhere.” The jury returned with a verdict of $2 million.
Conclusion:
Stuart was impressed with how the Reptile© prepared him for trial. From witness prep, to focus groups, to jury selection, the Reptile© was the key to unlocking the potential in his case. Stuart’s case was not an easy one. He had an unsympathetic client, who had major guilt and emotional concerns. In addition, his client’s wife had a rare and complex blood disorder that some doctors have gone their whole career and never seen. The Reptile© equipped Stuart to overcome those issues. It encouraged Stuart to simplify his case by constructing his safety rules, taking his client off code, the exposing the hospital’s betrayal.
Stuart found the Keenan Ball College to be a key reason why he was able to receive this verdict. According to Stuart, he owes a lot of thanks to his instructors, peers, and laypersons at the Rules and Case Selection College. Stuart attributes this verdict to the one-on-one session during the Rules and Case Selection College, the critique and feedback he received there, to his hours and hours of study while viewing the Witness Prep DVD and Voir Dire DVD, listening to the Focus Group audio CD, and to the unending brainstorming with fellow Reptile© lawyers. Stuart would like to encourage all of those that are interested in implementing the Reptile© in their cases, to come out to the Keenan Ball College to instantly strengthen their case for trial.
NOTE FROM PAPA DON:
I regret to announce the passage of one of my strong mentors particularly in the Irish community both in Atlanta and New York. Don Keough was born, ironically, in the same neighborhood in Nebraska as Warren Buffett and they have been lifelong friends. While we know and revere Buffett’s business ability, Don’s was equal. He rose through the ranks to become president of Coca-Cola and then chairman of its board for many, many years. He was a man of great personal strength and integrity who could create more power in one word than an entire speech by another. The fact that he had even a minute for me speaks of his character and legacy. He’s done more for Irish Americans than any single person in history. Just Google his name and you’ll discover that he subscribed to the former president and chairman of the board of Coca-Cola Robert Woodruff when he said “It’s amazing what you can get done when you’re willing to give credit to others.” Don never took credit ever.
I do have to say that part of me always felt sorry for Don because every time I went to lunch or dinner with him he would be barraged, and I do mean barraged, with lines of people wanting to talk to him about his donating money to either their business or charity. I could go on, but I think the lesson for you is that one cannot continue to succeed in this world without mentors; I’ve lost a big one in my life.
NOTES from DON:
1. This week I got 8 requests for codes and fortunately I had them all, for all requests. Remember a) do not guess and b) you cannot find the codes yourself. We certainly invite you to ask for codes but if we do not reply, it is because we don’t have the code.
2. We continue to get requests for referrals to lawyers in other States versed in The Reptile. We got 11 case referrals this week. There’s no charge for this service so if you need an out of State lawyer for one of your cases, just ask. There’s no charge for this service