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Custom-and-Practice Evidence: Exclusion from the Medical Malpractice Case

By Alan W. Clark
May 02, 2015

The admission of evidence of a health care provider's customary practices to prove that he or she acted in accordance therewith in a specified plaintiff's case is not necessarily guaranteed. Last month, in Part One, we began looking at how New York's courts have handled the issue of admissibility when such evidence was offered. We continue that discussion here.

Routine Office Protocols vs. Medical Treatment

The Court of Appeals in Rivera v. Anilesh, 8 N.Y.3d 627 (2007), reversed the Appellate Division, First Department, by holding admissible the evidence of a dentist's routine procedure for administering injections of anesthesia prior to tooth extraction pursuant to the habit evidence rule, and allowing an inference that the same procedure was used in treating the plaintiff.

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