Admissibility of Custom and Practice Evidence in Medical Malpractice Cases

Our discussion begins with the seminal decision from New York's high court, the Court of Appeals, in Halloran v. Virginia Chemicals, 41 N.Y.2d 386 (1977), a product liability case in which the defense sought to introduce evidence of the plaintiff's “usage and practice” to use an immersion coil to heat the water into which the freon (the product) was placed, causing the explosion that seriously injured him.

On cross-examination by defense counsel, the plaintiff, an automobile mechanic, denied ever doing this. The defense offered a witness prepared to testify that he not only saw the plaintiff using the immersion coil to heat the freon on previous occasions, but also warned him of the danger. The plaintiff's objection to this proposed testimony was sustained by the trial judge, who relied on the well-settled rule that extrinsic evidence cannot be used to impeach a witness on collateral matters. New York's Appellate Division, Second Department, affirmed, and a question of law was certified for review.

The Court of Appeals, in reversing judgment for the plaintiff and granting a new trial, held for the first time that habit evidence of carelessness or carefulness may be admissible under limited circumstances to prove the actor was negligent or not negligent on the occasion in question. In this case, if the auto mechanic had habitually or regularly used the immersion coil to heat water into which the refrigerant container was placed, evidence of that habit was admissible with a proper foundation to prove that the plaintiff followed such a procedure on the day of the explosion; and that such evidence in this case was not collateral since it would explain the explosion, and therefore, did not violate the rule against using extrinsic evidence solely to impeach credibility on a collateral issue. The court reasoned:

Evidence of habit or regular usage, if properly defined and therefore circumscribed, involves more than unpatterned occasional conduct, that is, conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances; it involves a repetitive pattern of conduct and therefore predictable and predictive conduct. On this view, the excluded evidence was offered to show a particular method of executing a task followed by the mechanic, who, on his own testimony, had serviced “hundreds” of air-conditioning units and used “thousands” of cans of the refrigerant. If on remittal the evidence tends to show that the mechanic used an immersion coil a sufficient number of times to warrant a finding of habit, or regular usage, it would be admissible to aid the jury on its inquiry whether he did so on the occasion in question.

However, the court cautioned that on no view, under than traditional analysis, could conduct involving other persons or independently controlled instrumentalities produce a “regular usage” because of the likely variation of the circumstances in which such conduct would be indulged. Proof of a deliberate repetitive practice by one in complete control of the circumstances is quite another matter and it should therefore be admissible because it is so highly probative. Such conduct is more predictive than the frequency (or rarity) of jumping on streetcars or exercising stop-look-and-listen caution in crossing railroad tracks.

Custom and Practice Evidence Allowed and Disallowed

In certain dental malpractice actions, custom and practice evidence has been allowed as circumstantial evidence in defense of the claim. In Rigie v. Goldman, 148 A.D.2d 23 (2d Dept. 1989), a claim based on lack of informed consent regarding removal of an impacted wisdom tooth, the Second Department held that evidence of a dentist's routine practice of advising patients of risks associated with the surgical procedure, such as permanent numbness, was admissible as circumstantial evidence that he acted in conformity with routine practice.

In Rigie , the plaintiff testified at trial that defendant Dr. Levin, the oral surgeon, told her that the surgical procedure might cause her to experience some pain and numbness for a week or two. The plaintiff claimed that she was not otherwise informed of the dangers of the procedure, and that extraction of the wisdom tooth was the only course of treatment offered to her for her condition. As a result of the surgical procedure, the plaintiff claimed that she suffers from permanent paresthesia of the lip, chin and tongue, which can only arise by the severing or injuring of a nerve in the oral cavity.

Dr. Levin testified that he had no independent recollection specifically of what he told the plaintiff regarding the risks associated with removal of an impacted wisdom tooth. The court permitted Dr. Levin to testify, over objections from plaintiff's counsel, as to his routine practice developed over 19 years as a specialist in oral and maxillofacial surgery. He said that for every one of thousands of wisdom tooth extractions that he performed, he invariably told his patients prior to removal of an impacted wisdom tooth of the risks and complications of the procedure, including the possibility of permanent numbness of the tongue, chin and lip. He also said he told those patients that no alternative to extraction existed to alleviate the condition, but that he could treat the condition with antibiotics or by cleaning the infected area. Although Dr. Levin could not recall the specifics of the conversation with plaintiff prior to the extraction, he remembered delivering a warning to her concerning the dangers attendant to oral surgery.

Further, Dr. Levin's dental assistant for the prior eight years was permitted to testify as to Dr. Levin's consistent practice of informing patients of the usual risks associated with an extraction of an impacted wisdom tooth, including the admonition that temporary or permanent numbness of the lip, tongue or chin might result. The dental assistant testified that in the hundreds of surgical procedures she witnessed involving extraction of wisdom teeth, Dr. Levin, without exception, had issued a warning to the patient of the dangers associated with the surgical procedure prior to the administration of anesthesia to the patient. Following Dr. Levin's disclosures, the dental assistant's routine was to ask the patient if he or she had any further questions, and if not, she would present the informed-consent form to the patient to sign in her presence. The dental assistant would then date and sign the form as witness. The signed informed consent obtained from the plaintiff in the case was admitted into evidence, and the signature identified.

The Second Department, in affirming judgment for the defendant and upholding the admissibility of the aforesaid testimony as circumstantial evidence of habit followed by the defendant, explained:

The choice of legal theory has important ramifications with respect to the evidentiary ruling at issue in this case. Because the conduct of the parties is measured by the standard negligence analysis, the habit evidence at issue must be reviewed within the context of the principles espoused in Halloran rather than within the traditional rule applicable to routine business or professional tasks. Considering the trial record in that context, we are of the opinion that the testimony to which the plaintiff objects provided an adequate number of prior instances of specific, repetitive conduct by Dr. Levin when confronted with a patient presenting a similar condition to rise to the level of habit. Moreover, Dr. Levin was in complete control of the circumstances in which the operative procedure was performed. Thus, while creating no presumption that the practice was followed in the particular instance at issue, the testimony of Dr. Levin as to his routine practice, corroborated by his dental assistant, was properly admissible to support an inference by the jury that the practice was followed on the particular occasion in question [ ]. ' The weight and value to be accorded such testimony as well as the resolution of the plaintiff's contradictory testimony that Dr. Levin did not warn her of the dangers associated with the surgical procedure were for determination by the jury.

In Rigie, the court was careful to point out that expert testimony was required in order to establish the applicable standard of care to be followed in determining whether informed consent was obtained.

However, in Gushlaw v. Roll, 290 A.D.2d 667, the Third Department, in distinguishing the holding in Rigie, held that the defendant, a maxillofacial surgeon, was not permitted to offer testimony of himself and his dental assistant as to the general custom and practice of the manner in which they handled patients during surgery.

In Gushlaw, the defendant performed an extraction of the lower right wisdom tooth and molar, following which the plaintiff's decedent experienced pain in his jaw, neck and left shoulder. Ultimately, the plaintiff's decedent was diagnosed with two cervical herniated discs and underwent surgery to remove them. The plaintiff also sought to rely on the doctrine of res ipsa loquitur to raise an inference of negligence; this was rejected by the court.

The court, citing Halloran and Rigie, reasoned as follows:

Defendant … contends that Supreme Court erred in not allowing him and his dental assistant to testify as to their general practice in the manner in which they handle patients during surgery. We disagree, “New York courts have long resisted allowing evidence of specific acts of carelessness or carefulness [except in carefully circumscribed instances] to create an inference that such conduct was repeated when like circumstances were again presented” (Halloran v. Virginia Chems., 41 N.Y.2d 386, 391 [ ]). The cases permitting the use of such evidence traditionally have been “limited to situations involving the performance of routine business or professional tasks” (Rigie v. Goldman, 148 A.D.2d 23 [ ]), which includes the repetitive manner in which a physician informs his or her patients of the risks involved in a particular type of surgery [ ]. However, the repetitive “hornbook” warnings conveyed by a physician to prospective surgical patients “is scarcely analogous to that of [an oral surgeon] performing surgery wherein each patient and the nature of his or her medical condition is unique as are the actions of the operating doctor” (Glusaskas v. Hutchinson, 148 A.D.2d 203, 206 [ ].)

In the case the Gushlaw court referred to above ' Glusaskas v. John E. Hutchinson, III, M.D., P.C., 148 A.D.2d 203 (1st Dept. 1989) ' the First Appellate Department held that the trial court's decision to permit the jury to view videotape of the defendant performing a similar operation to that performed upon the plaintiff's decedent was highly improper, inflammatory and prejudicial, requiring a new trial.

The plaintiff's decedent in Glusaskas died in the operating room from a laceration of the aorta, sustained during surgical repair of an infected prosthetic mitral valve and internal hemorrhage. The defendant performed this surgery as well as a prior surgery for aortic and mitral valve stenosis with replacement of both valves. During the surgery in question, the defendant used an oscillating saw to cut the sternum; marked hemorrhaging occurred and caused the patient's death.

On direct examination of the defendant surgeon, defense counsel was permitted to introduce into evidence a videotape of the defendant's performance of another heart valve replacement operation six years after the fatal surgery and two to three weeks before the start of the trial. Over strong objection by plaintiff's counsel, the trial judge, after viewing the videotape in camera and conducting a voir dire on its admissibility, ruled that it was relevant to show the jury how the procedure was done. Not surprisingly, a defense verdict ensued.

The First Department, in reversing this decision and granting a new trial, explained the holding in Halloran as follows:

[T]he holding in Halloran v. Virginia Chemicals Incorporated ' relaxes the traditional rule only to the extent of accepting that in certain instances, such as products liability litigation, proof of regular usage or habit might be warranted where deliberate and repetitive practice is involved. The instant allegation of medical malpractice certainly does not present a situation comparable to that of a purportedly defective packaged refrigerant, the subject of the dispute in Halloran …. The manufacture or use of an inanimate object is scarcely analogous to that of a physician performing surgery wherein each patient and the nature of his or her medical condition is unique as are the actions of the operating doctor. It is crucial that evidence of a person's specific acts of carelessness or carefulness on other occasions is generally inadmissible even when the underlying circumstances of the prior or subsequent conduct was similar to the one in contention. Here, the circumstances of the surgery performed in Glusaskas and that depicted in the videotape were not alike. Not only was the tape prepared exclusively for the trial, thus providing Dr. Hutchinson with an opportunity to use special, if not extraordinary, care in the filmed operation (and defendant admits that more time was taken on the demonstrated procedure than is normally done), but the medical and physical condition of the two individuals involved was, as heretofore noted, different.

Next month we will see how some other New York courts have handled the question of whether evidence of a health care provider's custom and practice should be admitted in a medical malpractice case.

Alan W. Clark is the managing partner of the Law Firm of Alan W. Clark & Associates, in Levittown, NY. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

Can evidence of a health care provider's custom and practice be admissible as habit evidence to prove a fact in malpractice cases? Can such evidence be proof in support of or against the standard of care sufficient to support or oppose a motion for summary judgment for or against a party? Can such evidence arise from a creative imagination and be a poor excuse for medical negligence?

The simple answer to all is, “Yes.” Therefore, the courts must choose to exercise much scrutiny and discretion before allowing such evidence to be admissible. By way of example, we will look at the how the issues have been handled in the State of New York.

The Leading Case

Our discussion begins with the seminal decision from New York's high court, the Court of Appeals, in Halloran v. Virginia Chemicals , 41 N.Y.2d 386 (1977), a product liability case in which the defense sought to introduce evidence of the plaintiff's “usage and practice” to use an immersion coil to heat the water into which the freon (the product) was placed, causing the explosion that seriously injured him.

On cross-examination by defense counsel, the plaintiff, an automobile mechanic, denied ever doing this. The defense offered a witness prepared to testify that he not only saw the plaintiff using the immersion coil to heat the freon on previous occasions, but also warned him of the danger. The plaintiff's objection to this proposed testimony was sustained by the trial judge, who relied on the well-settled rule that extrinsic evidence cannot be used to impeach a witness on collateral matters. New York's Appellate Division, Second Department, affirmed, and a question of law was certified for review.

The Court of Appeals, in reversing judgment for the plaintiff and granting a new trial, held for the first time that habit evidence of carelessness or carefulness may be admissible under limited circumstances to prove the actor was negligent or not negligent on the occasion in question. In this case, if the auto mechanic had habitually or regularly used the immersion coil to heat water into which the refrigerant container was placed, evidence of that habit was admissible with a proper foundation to prove that the plaintiff followed such a procedure on the day of the explosion; and that such evidence in this case was not collateral since it would explain the explosion, and therefore, did not violate the rule against using extrinsic evidence solely to impeach credibility on a collateral issue. The court reasoned:

Evidence of habit or regular usage, if properly defined and therefore circumscribed, involves more than unpatterned occasional conduct, that is, conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances; it involves a repetitive pattern of conduct and therefore predictable and predictive conduct. On this view, the excluded evidence was offered to show a particular method of executing a task followed by the mechanic, who, on his own testimony, had serviced “hundreds” of air-conditioning units and used “thousands” of cans of the refrigerant. If on remittal the evidence tends to show that the mechanic used an immersion coil a sufficient number of times to warrant a finding of habit, or regular usage, it would be admissible to aid the jury on its inquiry whether he did so on the occasion in question.

However, the court cautioned that on no view, under than traditional analysis, could conduct involving other persons or independently controlled instrumentalities produce a “regular usage” because of the likely variation of the circumstances in which such conduct would be indulged. Proof of a deliberate repetitive practice by one in complete control of the circumstances is quite another matter and it should therefore be admissible because it is so highly probative. Such conduct is more predictive than the frequency (or rarity) of jumping on streetcars or exercising stop-look-and-listen caution in crossing railroad tracks.

Custom and Practice Evidence Allowed and Disallowed

In certain dental malpractice actions, custom and practice evidence has been allowed as circumstantial evidence in defense of the claim. In Rigie v. Goldman , 148 A.D.2d 23 (2d Dept. 1989), a claim based on lack of informed consent regarding removal of an impacted wisdom tooth, the Second Department held that evidence of a dentist's routine practice of advising patients of risks associated with the surgical procedure, such as permanent numbness, was admissible as circumstantial evidence that he acted in conformity with routine practice.

In Rigie , the plaintiff testified at trial that defendant Dr. Levin, the oral surgeon, told her that the surgical procedure might cause her to experience some pain and numbness for a week or two. The plaintiff claimed that she was not otherwise informed of the dangers of the procedure, and that extraction of the wisdom tooth was the only course of treatment offered to her for her condition. As a result of the surgical procedure, the plaintiff claimed that she suffers from permanent paresthesia of the lip, chin and tongue, which can only arise by the severing or injuring of a nerve in the oral cavity.

Dr. Levin testified that he had no independent recollection specifically of what he told the plaintiff regarding the risks associated with removal of an impacted wisdom tooth. The court permitted Dr. Levin to testify, over objections from plaintiff's counsel, as to his routine practice developed over 19 years as a specialist in oral and maxillofacial surgery. He said that for every one of thousands of wisdom tooth extractions that he performed, he invariably told his patients prior to removal of an impacted wisdom tooth of the risks and complications of the procedure, including the possibility of permanent numbness of the tongue, chin and lip. He also said he told those patients that no alternative to extraction existed to alleviate the condition, but that he could treat the condition with antibiotics or by cleaning the infected area. Although Dr. Levin could not recall the specifics of the conversation with plaintiff prior to the extraction, he remembered delivering a warning to her concerning the dangers attendant to oral surgery.

Further, Dr. Levin's dental assistant for the prior eight years was permitted to testify as to Dr. Levin's consistent practice of informing patients of the usual risks associated with an extraction of an impacted wisdom tooth, including the admonition that temporary or permanent numbness of the lip, tongue or chin might result. The dental assistant testified that in the hundreds of surgical procedures she witnessed involving extraction of wisdom teeth, Dr. Levin, without exception, had issued a warning to the patient of the dangers associated with the surgical procedure prior to the administration of anesthesia to the patient. Following Dr. Levin's disclosures, the dental assistant's routine was to ask the patient if he or she had any further questions, and if not, she would present the informed-consent form to the patient to sign in her presence. The dental assistant would then date and sign the form as witness. The signed informed consent obtained from the plaintiff in the case was admitted into evidence, and the signature identified.

The Second Department, in affirming judgment for the defendant and upholding the admissibility of the aforesaid testimony as circumstantial evidence of habit followed by the defendant, explained:

The choice of legal theory has important ramifications with respect to the evidentiary ruling at issue in this case. Because the conduct of the parties is measured by the standard negligence analysis, the habit evidence at issue must be reviewed within the context of the principles espoused in Halloran rather than within the traditional rule applicable to routine business or professional tasks. Considering the trial record in that context, we are of the opinion that the testimony to which the plaintiff objects provided an adequate number of prior instances of specific, repetitive conduct by Dr. Levin when confronted with a patient presenting a similar condition to rise to the level of habit. Moreover, Dr. Levin was in complete control of the circumstances in which the operative procedure was performed. Thus, while creating no presumption that the practice was followed in the particular instance at issue, the testimony of Dr. Levin as to his routine practice, corroborated by his dental assistant, was properly admissible to support an inference by the jury that the practice was followed on the particular occasion in question [ ]. ' The weight and value to be accorded such testimony as well as the resolution of the plaintiff's contradictory testimony that Dr. Levin did not warn her of the dangers associated with the surgical procedure were for determination by the jury.

In Rigie, the court was careful to point out that expert testimony was required in order to establish the applicable standard of care to be followed in determining whether informed consent was obtained.

However, in Gushlaw v. Roll , 290 A.D.2d 667, the Third Department, in distinguishing the holding in Rigie , held that the defendant, a maxillofacial surgeon, was not permitted to offer testimony of himself and his dental assistant as to the general custom and practice of the manner in which they handled patients during surgery.

In Gushlaw, the defendant performed an extraction of the lower right wisdom tooth and molar, following which the plaintiff's decedent experienced pain in his jaw, neck and left shoulder. Ultimately, the plaintiff's decedent was diagnosed with two cervical herniated discs and underwent surgery to remove them. The plaintiff also sought to rely on the doctrine of res ipsa loquitur to raise an inference of negligence; this was rejected by the court.

The court, citing Halloran and Rigie, reasoned as follows:

Defendant … contends that Supreme Court erred in not allowing him and his dental assistant to testify as to their general practice in the manner in which they handle patients during surgery. We disagree, “New York courts have long resisted allowing evidence of specific acts of carelessness or carefulness [except in carefully circumscribed instances] to create an inference that such conduct was repeated when like circumstances were again presented” ( Halloran v. Virginia Chems. , 41 N.Y.2d 386, 391 [ ]). The cases permitting the use of such evidence traditionally have been “limited to situations involving the performance of routine business or professional tasks” ( Rigie v. Goldman , 148 A.D.2d 23 [ ]), which includes the repetitive manner in which a physician informs his or her patients of the risks involved in a particular type of surgery [ ]. However, the repetitive “hornbook” warnings conveyed by a physician to prospective surgical patients “is scarcely analogous to that of [an oral surgeon] performing surgery wherein each patient and the nature of his or her medical condition is unique as are the actions of the operating doctor” ( Glusaskas v. Hutchinson , 148 A.D.2d 203, 206 [ ].)

In the case the Gushlaw court referred to above ' Glusaskas v. John E. Hutchinson, III, M.D., P.C. , 148 A.D.2d 203 (1st Dept. 1989) ' the First Appellate Department held that the trial court's decision to permit the jury to view videotape of the defendant performing a similar operation to that performed upon the plaintiff's decedent was highly improper, inflammatory and prejudicial, requiring a new trial.

The plaintiff's decedent in Glusaskas died in the operating room from a laceration of the aorta, sustained during surgical repair of an infected prosthetic mitral valve and internal hemorrhage. The defendant performed this surgery as well as a prior surgery for aortic and mitral valve stenosis with replacement of both valves. During the surgery in question, the defendant used an oscillating saw to cut the sternum; marked hemorrhaging occurred and caused the patient's death.

On direct examination of the defendant surgeon, defense counsel was permitted to introduce into evidence a videotape of the defendant's performance of another heart valve replacement operation six years after the fatal surgery and two to three weeks before the start of the trial. Over strong objection by plaintiff's counsel, the trial judge, after viewing the videotape in camera and conducting a voir dire on its admissibility, ruled that it was relevant to show the jury how the procedure was done. Not surprisingly, a defense verdict ensued.

The First Department, in reversing this decision and granting a new trial, explained the holding in Halloran as follows:

[T]he holding in Halloran v. Virginia Chemicals Incorporated ' relaxes the traditional rule only to the extent of accepting that in certain instances, such as products liability litigation, proof of regular usage or habit might be warranted where deliberate and repetitive practice is involved. The instant allegation of medical malpractice certainly does not present a situation comparable to that of a purportedly defective packaged refrigerant, the subject of the dispute in Halloran …. The manufacture or use of an inanimate object is scarcely analogous to that of a physician performing surgery wherein each patient and the nature of his or her medical condition is unique as are the actions of the operating doctor. It is crucial that evidence of a person's specific acts of carelessness or carefulness on other occasions is generally inadmissible even when the underlying circumstances of the prior or subsequent conduct was similar to the one in contention. Here, the circumstances of the surgery performed in Glusaskas and that depicted in the videotape were not alike. Not only was the tape prepared exclusively for the trial, thus providing Dr. Hutchinson with an opportunity to use special, if not extraordinary, care in the filmed operation (and defendant admits that more time was taken on the demonstrated procedure than is normally done), but the medical and physical condition of the two individuals involved was, as heretofore noted, different.

Next month we will see how some other New York courts have handled the question of whether evidence of a health care provider's custom and practice should be admitted in a medical malpractice case.

Alan W. Clark is the managing partner of the Law Firm of Alan W. Clark & Associates, in Levittown, NY. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.