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

The defendant, prior to extracting the plaintiff's lower molar tooth for complaints related thereto, performed a “lower left mandibular block injection” in order to numb the area near this tooth. According to the plaintiff, she continued to have sensation in the area and the defendant gave her a second injection in the same place, at which time the plaintiff experienced extreme pain, like an electric shock. However, the injections did numb the plaintiff's mouth, and the defendant performed the tooth extraction. Subsequently, the plaintiff purportedly developed fever, pain and swelling in her mouth, received follow-up care and treatment from the defendant and from two oral surgeons (the first diagnosed TMJ), and ultimately was diagnosed with severe infection requiring a three-week hospitalization.

The plaintiff asserted causes of action for malpractice and lack of informed consent, alleging that the defendant negligently performed the injections of anesthesia and tooth extraction, and failed to properly manage the extraction.

The defendant moved for summary judgment dismissing the complaint, relying on her deposition testimony and affirmation from another oral surgeon. The defendant testified that she did not recall treating the plaintiff for the lower molar tooth problem, and therefore could not recall what occurred during the extraction. She did state that the administration of this type of injection was a “routine procedure” that she administered “every day” to “at least three to four or five” patients, and that she had been a practicing dentist since 1982. The defendant further explained that a second injection of anesthesia was required in 15%-20% of her cases. She provided a step-by-step description of the procedure she used to give injections to patients, and claimed that when a second injection was necessary, she administered it at the same site as the first injection. The defendant noted that if a patient complained of unusual pain or any other unexpected events occurred during treatment, she would make a notation in the medical chart and no such note existed for the plaintiff.

The Court of Appeals, in reversing the Appellate Division and allowing such habit evidence by the defendant to support summary judgment under Halloran (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 and shift the burden to plaintiff; discussed in Part One of this article) stated the following rationale:

The Appellate Divisions have generally adopted the proposition that normal documentation and notification protocols, routine warnings to patients and the processes for undertaking certain noninvasive medical procedures can qualify as habit evidence. In contrast, evidence concerning a physician's surgical practices has been deemed inadmissible under the theory that every surgery is necessarily unique, and varies depending on the nature of the patient's medical condition and the actions of the doctor.

Without commenting on the propriety of these decisions, the record here supports the admissibility of Dr. Anilesh's routine procedure for administering injections of anesthesia under the standard articulated in Halloran in light of the frequency that this technique was used in Dr. Anilesh's dental practice, and the nature of the routine conducted. Dr. Anilesh explained that she gave this type of injection every day to three to five patients and that she had been practicing as a dentist since 1982. Even by a conservative estimate, this testimony would indicate that Dr. Anilesh performed this procedure in the same manner thousands of times.

Nor do we believe that the nature of this injection process renders it unsuitable for consideration as habit evidence. Dr. Anilesh described the specific procedure that she used when injecting an anesthetic and her expert confirmed that this procedure was within the accepted standard of care for dentistry. Relatedly, there is no evidence suggesting that Dr. Anilesh's pre-extraction injection procedure would vary from patient to patient depending on the particular medical circumstances or physical condition of the patient. This record therefore contains “proof of a deliberate and repetitive practice”the mundane administration of a local anesthetic prior to a relatively routine tooth extraction-by a trained, experienced professional “in complete control of the circumstances” (Halloran, 41 N.Y.2d at 392, 393 N.Y.S.2d 341, 361 N.E.2d 991). We conclude that Dr. Anilesh's habit evidence was properly considered by Supreme Court in conjunction with the motion for summary judgment and that it was sufficient to shift the burden to Rivera to provide evidence creating an issue of fact as to whether Dr. Anilesh committed malpractice.

More Courts Weigh In

In Soltis v. State, 188 A.D.2d 201 (3d Dept. 1993), the Appellate Division, Third Department, in a case involving the issue of vicarious liability, held that the state should have been permitted to introduce evidence that it was the custom and practice of physicians' assistants and nurses at a correctional facility clinic to advise inmates that treating physicians were not state employees. In its opinion, the court stated: “There is nothing in the Halloran decision … to suggest an intent to narrow the traditional evidentiary rule respecting the admissibility of business, professional or other institutional custom or practice on matters other than negligence or due care.”

In Nigro v. Benjamin, 155 A.D.2d 872 (4th Dept. 1989), the Fourth Department, in citing Halloran , held that the court below did not err in admitting limited testimony concerning the protocol defendant followed when conducting breast examinations upon the plaintiff. (The specific facts and evidence were not recited in the court's brief opinion.)

In reversing an order granting summary judgment to the defendant on-call physician, the Fourth Department held in Gier v. CGF Health Sys., 307 A.D.2d 729 (4th Dept. 2003), that affidavits submitted by the plaintiff of the admitting surgical resident and of the chief surgical resident ' neither of whom had a specific recollection whether defendant was notified of decedent's admission ' constituted competent and admissible evidence concerning routine professional practice. Those affidavits ' attesting that it was “normal procedure and protocol” as well as “routine practice” to notify the on-call attending physician at the time of an admission, and that the chief surgical resident recalled no incident in the past five years as a resident in which an on-call attending had not been notified ' raised a triable issue of fact as to whether the defendant was timely notified of the admission.

In affirming judgment upon a jury verdict in favor of defendant, the Fourth Department, in Biesiada v. Suresh, 309 A.D.2d 1245 (4th Dept. 2003), rejected plaintiff's argument that it was error for the court below to allow defendant to testify concerning her usual practice in transferring stroke patients from supine to seated positions. “Proof of a deliberate repetitive practice by one in complete control of the circumstances” is admissible provided the proof demonstrates “a sufficient number of instances of the conduct in question,” the court declared, citing Halloran. Thus, although the defendant had no specific recollection of the circumstances of the incident at issue, her testimony concerning her protocol was properly admitted to establish her conduct during the incident at issue.

In Orloski v. McCarthy, 274 A.D.2d 633 (3d Dept. 2000)., the Third Department, in affirming judgment upon a jury verdict in favor of the defendant, held that the nurses' testimony regarding their custom in documenting patient complaints and maintaining medical records, based upon lack of notations contained in the patient's medical records, was admissible. This court also allowed defendant's medical expert to testify as to the procedure a doctor followed in performing a routine rectal examination on decedent when rendering a second opinion.

Conclusion

In sum, the case law discussed in this and last month's newsletters demonstrates that habit evidence ' a form of circumstantial evidence ' may be admissible in limited malpractice cases by proof of custom and practice to prove carelessness or carefulness of an act or occurrence when there is no recollection of the facts. Such evidence may be used to support or deny summary judgment to a party. However, circumstantial evidence is no substitute for medical expert opinion to prove the relevant standard of care and whether good and accepted medical practice was complied with or violated by the defendant(s).

Moreover, courts must consider whether such habit or circumstantial evidence belongs to the creative imagination of the party or attorney and is being used in such a way as to unjustifiably excuse an act or omission of carelessness or negligence where the party has no recollection of the events. One can only imagine the unlimited circumstances where meritorious claims or defenses might be defeated by abuse of circumstantial evidence, where evidence of a party's custom and practice to do the right thing and never be wrong carries the day, despite the facts of the 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 newletter.

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.

The defendant, prior to extracting the plaintiff's lower molar tooth for complaints related thereto, performed a “lower left mandibular block injection” in order to numb the area near this tooth. According to the plaintiff, she continued to have sensation in the area and the defendant gave her a second injection in the same place, at which time the plaintiff experienced extreme pain, like an electric shock. However, the injections did numb the plaintiff's mouth, and the defendant performed the tooth extraction. Subsequently, the plaintiff purportedly developed fever, pain and swelling in her mouth, received follow-up care and treatment from the defendant and from two oral surgeons (the first diagnosed TMJ), and ultimately was diagnosed with severe infection requiring a three-week hospitalization.

The plaintiff asserted causes of action for malpractice and lack of informed consent, alleging that the defendant negligently performed the injections of anesthesia and tooth extraction, and failed to properly manage the extraction.

The defendant moved for summary judgment dismissing the complaint, relying on her deposition testimony and affirmation from another oral surgeon. The defendant testified that she did not recall treating the plaintiff for the lower molar tooth problem, and therefore could not recall what occurred during the extraction. She did state that the administration of this type of injection was a “routine procedure” that she administered “every day” to “at least three to four or five” patients, and that she had been a practicing dentist since 1982. The defendant further explained that a second injection of anesthesia was required in 15%-20% of her cases. She provided a step-by-step description of the procedure she used to give injections to patients, and claimed that when a second injection was necessary, she administered it at the same site as the first injection. The defendant noted that if a patient complained of unusual pain or any other unexpected events occurred during treatment, she would make a notation in the medical chart and no such note existed for the plaintiff.

The Court of Appeals, in reversing the Appellate Division and allowing such habit evidence by the defendant to support summary judgment under Halloran ( 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 and shift the burden to plaintiff; discussed in Part One of this article) stated the following rationale:

The Appellate Divisions have generally adopted the proposition that normal documentation and notification protocols, routine warnings to patients and the processes for undertaking certain noninvasive medical procedures can qualify as habit evidence. In contrast, evidence concerning a physician's surgical practices has been deemed inadmissible under the theory that every surgery is necessarily unique, and varies depending on the nature of the patient's medical condition and the actions of the doctor.

Without commenting on the propriety of these decisions, the record here supports the admissibility of Dr. Anilesh's routine procedure for administering injections of anesthesia under the standard articulated in Halloran in light of the frequency that this technique was used in Dr. Anilesh's dental practice, and the nature of the routine conducted. Dr. Anilesh explained that she gave this type of injection every day to three to five patients and that she had been practicing as a dentist since 1982. Even by a conservative estimate, this testimony would indicate that Dr. Anilesh performed this procedure in the same manner thousands of times.

Nor do we believe that the nature of this injection process renders it unsuitable for consideration as habit evidence. Dr. Anilesh described the specific procedure that she used when injecting an anesthetic and her expert confirmed that this procedure was within the accepted standard of care for dentistry. Relatedly, there is no evidence suggesting that Dr. Anilesh's pre-extraction injection procedure would vary from patient to patient depending on the particular medical circumstances or physical condition of the patient. This record therefore contains “proof of a deliberate and repetitive practice”the mundane administration of a local anesthetic prior to a relatively routine tooth extraction-by a trained, experienced professional “in complete control of the circumstances” (Halloran, 41 N.Y.2d at 392, 393 N.Y.S.2d 341, 361 N.E.2d 991). We conclude that Dr. Anilesh's habit evidence was properly considered by Supreme Court in conjunction with the motion for summary judgment and that it was sufficient to shift the burden to Rivera to provide evidence creating an issue of fact as to whether Dr. Anilesh committed malpractice.

More Courts Weigh In

In Soltis v. State , 188 A.D.2d 201 (3d Dept. 1993), the Appellate Division, Third Department, in a case involving the issue of vicarious liability, held that the state should have been permitted to introduce evidence that it was the custom and practice of physicians' assistants and nurses at a correctional facility clinic to advise inmates that treating physicians were not state employees. In its opinion, the court stated: “There is nothing in the Halloran decision … to suggest an intent to narrow the traditional evidentiary rule respecting the admissibility of business, professional or other institutional custom or practice on matters other than negligence or due care.”

In Nigro v. Benjamin , 155 A.D.2d 872 (4th Dept. 1989), the Fourth Department, in citing Halloran , held that the court below did not err in admitting limited testimony concerning the protocol defendant followed when conducting breast examinations upon the plaintiff. (The specific facts and evidence were not recited in the court's brief opinion.)

In reversing an order granting summary judgment to the defendant on-call physician, the Fourth Department held in Gier v. CGF Health Sys. , 307 A.D.2d 729 (4th Dept. 2003), that affidavits submitted by the plaintiff of the admitting surgical resident and of the chief surgical resident ' neither of whom had a specific recollection whether defendant was notified of decedent's admission ' constituted competent and admissible evidence concerning routine professional practice. Those affidavits ' attesting that it was “normal procedure and protocol” as well as “routine practice” to notify the on-call attending physician at the time of an admission, and that the chief surgical resident recalled no incident in the past five years as a resident in which an on-call attending had not been notified ' raised a triable issue of fact as to whether the defendant was timely notified of the admission.

In affirming judgment upon a jury verdict in favor of defendant, the Fourth Department, in Biesiada v. Suresh , 309 A.D.2d 1245 (4th Dept. 2003), rejected plaintiff's argument that it was error for the court below to allow defendant to testify concerning her usual practice in transferring stroke patients from supine to seated positions. “Proof of a deliberate repetitive practice by one in complete control of the circumstances” is admissible provided the proof demonstrates “a sufficient number of instances of the conduct in question,” the court declared, citing Halloran . Thus, although the defendant had no specific recollection of the circumstances of the incident at issue, her testimony concerning her protocol was properly admitted to establish her conduct during the incident at issue.

In Orloski v. McCarthy , 274 A.D.2d 633 (3d Dept. 2000)., the Third Department, in affirming judgment upon a jury verdict in favor of the defendant, held that the nurses' testimony regarding their custom in documenting patient complaints and maintaining medical records, based upon lack of notations contained in the patient's medical records, was admissible. This court also allowed defendant's medical expert to testify as to the procedure a doctor followed in performing a routine rectal examination on decedent when rendering a second opinion.

Conclusion

In sum, the case law discussed in this and last month's newsletters demonstrates that habit evidence ' a form of circumstantial evidence ' may be admissible in limited malpractice cases by proof of custom and practice to prove carelessness or carefulness of an act or occurrence when there is no recollection of the facts. Such evidence may be used to support or deny summary judgment to a party. However, circumstantial evidence is no substitute for medical expert opinion to prove the relevant standard of care and whether good and accepted medical practice was complied with or violated by the defendant(s).

Moreover, courts must consider whether such habit or circumstantial evidence belongs to the creative imagination of the party or attorney and is being used in such a way as to unjustifiably excuse an act or omission of carelessness or negligence where the party has no recollection of the events. One can only imagine the unlimited circumstances where meritorious claims or defenses might be defeated by abuse of circumstantial evidence, where evidence of a party's custom and practice to do the right thing and never be wrong carries the day, despite the facts of the 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 newletter.