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Habit Evidence

ADMISSIBILITY OF CUSTOM AND PRACTICE IN MEDICAL MALPRACTICE CASES: TRUTH OR CONEQUENCES?

By: Alan W. Clark, Esq.*

PART 1 OF A 2 PART SERIES

Can evidence of a health care provider’s custom and practice be admissible at trial as habit evidence to prove a fact or standard of care? Can such evidence be proof in support of due care or lack thereof 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 questions is yes. Therefore, the Courts must choose to exercise much scrutiny and discretion before allowing circumstantial evidence to be admissible creating an inference of due care or lack thereof.

The discussion begins with the seminal Court of Appeals decision in Halloran v. Virginia Chemicals, Inc.,41 N.Y. 2nd 386, 393 N.Y.S.2nd 341 ( 1977 ), a product liability case in which the defense sought to introduce evidence of 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 seriously injuring the plaintiff.

The plaintiff, an automobile mechanic, on cross-examination by defense counsel denied ever doing this. The defense offered a witness prepared to testify that he not only saw plaintiff using the immersion coil to heat the freon on previous occasions, contrary to warning label, but also warned plaintiff of the danger as well. Plaintiff’s objection to this proposed testimony was
sustained by the Trial Judge relying on the well settled rule that extrinsic evidence cannot be used to impeach a witness on collateral matters. The Second Department affirmed, and a question of law was certified for review.

The Court of Appeals, in reversing judgment for 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 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 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 cautions that on no view, under traditional analysis, can conduct involving other persons or independently controlled instrumentalities produce a regular usage because of the likely variation of the circumstances in which such conduct will be indulged. Proof of a deliberate repetitive practice by one in complete control of the 3 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. ( emphasis added ).

Under Halloran, before testimony of habit is “allowed the party tendering the evidence must” show on vojr dire… “that he expects to prove a sufficient number of instances of the conduct in question.”

It should be noted that Halloran did not affect the long standing pre-existing evidentiary rule regarding the use of evidence of business, professional or other institutional custom or practice in so far as it is relevant to issues other than the exercise of due care.

In Davis v.Blum, 70 A.D.2d 583 ( App.Div.1979 ), the Second Department reversed a defendant’s verdict, holding that it was reversible error to allow evidence of alleged alcoholism in order to show that he tendered to exercise “poor judgment”, and to introduce opinion evidence that the plaintiff exhibited a so-called “denial syndrome”, which would tend to make him disregard competent medical advice and then chose to undergo a contraindicated surgical procedure.

The Court stated:

“In our opinion such evidence is akin to evidence of character and habit which is generally inadmissible in civil cases to raise the inference that a party acted in a particular way on the occasion in issue.”

The issue in Davis, supra, was whether the defendant Blum had urged the plaintiff to undergo the elective inguinal hernia repair which was admittedly dangerous under the circumstances and should not have been recommended and performed. The surgery allegedly
caused plaintiff to suffer a massive stroke leaving him permanently unable to walk or speak.

However, evidence of similar acts in the past may be relevant to prove intent or the absence of mistake and therefore discoverable. Davis v. Solondz, 122 A.D.2nd 401(App. Div.3rd Dep’t 1986), citing Matter of Brandon, 55 N.Y. 2d 206) ( emphasis added )

In Davis, supra, discovery was permitted of prior lawsuits involving defendant performance of allegedly unauthorized dental work without prior consent because defendant’s intent and absence of mistake was at issue. The evidence was considered “material and
necessary” CPLR 3101 (a) to the prosecution of the action.

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. 2nd 23, 543 N.Y.S. 2nd 983 (App. Div.2nd Dep’t 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, supra., the plaintiff testified at trial that the 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. 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 for her condition. As a result of the surgical procedure, plaintiff claimed 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 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 of practice as a specialist in oral and maxillofacial surgery and followed in every instance of thousands of wisdom teeth extraction that he invariably tells 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 tells those patients that no alternative to extraction exists 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 the 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 8 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 admonition that temporary or permanent numbness of the lip, tongue or chin may 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/she had any further questions, and if not, she would present the informed consent form to the patient to sign in her presence, and the dental assistant would then date and sign the form as witness. The signed informed consent was admitted into evidence, and 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 explains:

“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 (Halloran v. Virginia Chems, supra, 41 N.Y.2d at 386, 393 N.Y.S.2d 341, 361 N.E.2d 991). The weight and value to be accorded such testimony that Dr. Levin did not warn her of the dangers associated with the surgical procedure were for determination by the jury.”

In Rigie, supra, 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.2nd 667, 735 N.Y.S.2nd 667 ( App. Div. 3rd Dep’t 2002 ), the Third Department in distinguishing the holding in Rigie, supra, held that defendant, an oral 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 handle patients
during surgery.

In Gushlaw, supra., the defendant performed an extraction of the lower right wisdom tooth following which plaintiff’s decedent experienced pain in his jaw, neck and left shoulder. Ultimately, 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 raising an inference of negligence which was rejected by the Court, reversing a jury verdict for plaintiff and granted a new trial.

The Court in citing Halloran, supra., and Rigie, supra., reasoned as follows:

“Defendant further 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, supra, 41 N.Y.2d at 386, 393 N. Y.S.2d 341, 361 N.E.2d 991). 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, 26 543 N.Y.S.2d 983), which includes the repetitive manner in which a physician informs his or her patients of the risks involved in a particular type of surgery (see, id., at 29, 543 N.Y.S.2d 983). However, the repetitive “hornbook” warning 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, 544 N.Y.S.2d 323” ( emphasis added ).

In Glusaskas v. John E. Hutchinson, III, M.D., P.C., 148 A.D.2nd 203, 544 N.Y.S.2nd 323 (App. Div. 1989 ), the First Department held that the Trial Court’s decision to permit jury to view videotape of the defendant performing a similar operation to that performed upon plaintiff’s decedent was highly improper, inflammatory and prejudicial, requiring a new trial.

The plaintiff’s decedent died in the operating room. The autopsy determined cause of death was a “laceration of aorta sustained during surgical repair of infected prosthetic mitral valve. 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 osculating saw to cut the sternum and marked hemorrhaging occurred and caused the patient’s death.

During direct examination of the defendant surgeon, defense counsel was permitted to introduce into evidence a videotape of defendant’s performance of another heart valve replacement operation 6 years after the fatal surgery and 2-3 weeks before the start of this trial. Over strong object 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, supra., as follows:

“indeed, the holding in Halloran v. Virginia Chemicals Incorporated, supra relaxes the traditional rue 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 v. Virginia Chemicals Incorporated, supra. 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.”

The Court explains that the patient involved in the video operation was a male in his late 40’s or early 50’s whose physical condition differed in a number of respects from Rose Glusaskas, including the fact that he was much larger and healthier, that his ventricular valve rather than aorta adhered to the sternum and his heart was not nearly so enlarged. Further the patient on video was undergoing coronary artery bypass surgery. Further, the videotaped operation was further buttressed by defendant’s oral testimony and went far beyond instructional purpose

The Court of Appeals in Rivera v. Anilesh, 8 N.Y.3rd 627, 838 N. Y. S. 2nd 478 ( 2007 ), reversed the Appellate Division First Department in holding evidence of dentist’s routine procedure for administering injections of anesthesia prior to tooth extraction admissible pursuant to habit evidence rule, allowing inference that the same procedure was used in treating the plaintiff.

The defendant, prior to extracting plaintiff’s lower molar tooth for complaints related thereto performed a “lower left mandibular block injection” in order to numb the area by this tooth. According to plaintiff, she continued to have sensation in the area and defendant gave her a second injection in the same area at which time plaintiff experienced extreme pain like an electric shock. However, the injections numbed plaintiff’s mouth, and defendant performed the tooth extraction. Subsequently, the plaintiff purportedly developed fever, pain and swelling in her mouth, received follow up care and treatment from defendant, and three oral surgeons (the first diagnosed TMJ) and ultimately was diagnosed with severe infection requiring a 3-week hospitalization.

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

Defendant moved for summary judgement dismissing the complaint, relying on her deposition testimony and affirmation from an expert oral surgeon. Defendant testified she did not recall treating plaintiff for 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 did “every day” to “at least procedure three to four or five” patients and that she was a practicing dentist since 1982. 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 administrated it at the same site as the first injection. Defendant noted that if a patient complained of unusual pain or any unexpected events occurred during treatment, she would make a notion in the medical chart and no such note existed for
plaintiff.

The Court of Appeals in reversing the Appellate Division and allowing such habit evidence by defendant to support summary judgement under Halloran, supra, and shift the burden to plaintiff states the following rationale:

“The Appellate Divisions have generally adopted the proposition that normal documentation and notification protocols, routine warning to
patients and the processes for undertaking certain noninvasive medical procedures can qualify as habit evidence. In contrast,
evidence concerning a physician’s surgical practice 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 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 v. Virginia Chems, supra, 41 N.Y.2d at 386, 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.” ( emphasis added ).

In Soltis v. State, 188 A.D.2nd 201, 594 N.Y.S.2nd 433 ( App. Div. 1993 ), the Third Department, in a case involving the issue of vicarious liability, held that the State should have been permitted to introduce evidence that is was the custom and practice of physicians’ assistants and nurses at correctional facility clinic to advise inmates that treating physicians were not State employees. The medical malpractice claim concerned a lymph node biopsy performed by Dr. Scors, an independent contractor causing spina accessory nerve damage. The PA who had allegedly given plaintiff notice was no longer employed and a currently employed PA was permitted to testify to same.

In its opinion, the Court states:

“there is nothing in the Halloran, decision, however, 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.”

Part 2 will further discuss admissibility to prove a business or professional practice versus proof of due care or lack thereof.

PART 2: FURTHER APPLICATION OF CUSTOM AND PRACTICE PRECEDENTS

In Nigro v. Benjamin , 155 A.D.2nd 872, 547 N.Y.S.2nd 710 ( App. Div. 1989 ), the Fourth Department, in citing Halloran, supra., 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 are 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.2nd 729, 762 N.Y.S.2nd 472 (App. Div. 2003 ), that affidavits submitted by plaintiff of the admitting surgical resident, and chief surgical resident, neither of whom had specific recollection whether defendant was notified of decedent’s admission, 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 constitutes competent and admissible evidence concerning routine professional practice to raise a triable issue of fact as to whether defendant was timely notified of the admission. The decedent in this wrongful death action died of a ruptured abdominal aortic aneurysm with the admitting diagnose of recurrent abdominal hernia.

In affirming judgement upon a jury verdict in favor of defendant, the Fourth Department, in Biesiada v. Suresh,309 A.D.2nd 1245, 764 N.Y.S. 2nd 739 ( App. Div. 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 patient from supine to seated positions. The plaintiff claims she was injured during the turning of a stroke patient when defendant allegedly failed to assist plaintiff. “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” citing Halloran, supra. Here, although 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. (italics added for emphasis).

In Orloski v. McCarthy, 274 A.D.2nd 633, 710 N.Y.S.2nd 691 ( App. Div. 2000 ), the Third Department in affirming judgement upon a jury verdict in favor of the defendant regarding claim of delayed diagnosis of colorectal cancer held that nurses’ testimony regarding their custom in documenting patient complaints and maintaining medical records based upon lack of notations contained in patient’s medical records, was properly admitted as evidence to raise inference that plaintiff did not complain of rectal bleeding, resulting in a 7 month delay in her cancer diagnosis. The plaintiff had undergone a total hysterectomy and testified at a videotaped deposition that she subsequently complained of rectal bleeding while still hospitalized.

This court also allowed defendant’s medical expert to testify as to the routine procedure of performance of a rectal examination and the procedure Jonathan Schwartz followed in performing a routine rectal examination on decedent when rendering a second opinion.

In The Plastic Surgery Group,P.C. v. Kolb, 2007 N.Y.Slip. Op. 33174 (2007), J. Daniel Martin held that proof of habit by Dr.DeVita, a plastic surgeon, regarding his custom and practice for obtaining informed consent for breast reduction procedure was not admissible to support the group’s motion for summary judgment. The medical chart indicated that Dr. DeVita explained all the procedures and complications associated with the surgery and all of Mrs. Kolb’s questions were answered. The defendant’s medical expert testified that based on Dr. DeVita’s deposition testimony he explains to every patient who has a breast reduction procedure involving a vertical mammoplasty that although they will not have a scar, pleads of skin gather under the breast from 4 – 6 months after the surgery and that in 40% of the cases there was a dog ear under the breast which can be resected during a 10 minute office procedure. Dr. DeVita testified that this dog ear is a normal sequella of surgery in question.

The court in denying summary judgment on the informed consent cause of action held that this habit evidence while admissible to establish that a patient was properly advised of the risks and options attendant to the medical procedure only establishes a basis for the jury to draw the permissible inference citing Rigie V. Goldman, supra but cannot be the basis for summary judgment citing Lindeman v. Salvan, 184 A.D.2d 910 (3rd Dep’t). Further, the court stated that even if assuming arguendo this habit evidence could be relied upon to establish that informed consent was procured, the group has not established the requisite proof that a reasonably prudent person would have undergone the procedure when fully informed. J. Martin did not refer to the Court of Appeal’s opinion in Rivera v. Anilesh, supra, decided a couple of months before which allows such evidence to be admissible to support summary judgment for a defendant.

In Campbell v. Kelly, 2012 N.Y. Slip. Op. 32525, Joan B. Lobis, in a well-reasoned decision, denied summary judgment to defendant psychiatrist in holding that habit evidence regarding whether Dr. Kelly performed a suicide assessment of plaintiff on the 2 dates in question was inadmissible as not satisfying the requirements set forth in Halloran, supra and Rivera, supra..

The plaintiff alleged that Dr. Kelly chose not to perform a suicide assessment which was a substantial factor in causing plaintiff, a fireman, suffering from PTSD as a result of 9/11, to attempt suicide by shooting himself in the torso suffering serious injuries to the brain, spleen and liver.

In this case defendant’s expert relied largely on Dr. Kelly’s testimony that his customary practice is to conduct a suicide assessment at every session, based on plaintiff psychiatric history, and to make a notation only in the event of a “positive” finding. J. Lobis explains that habit evidence of custom and practice applies to instances where a person has a “deliberate and repetitive practice” and is in” complete control of the circumstances” citing Rivera, supra. Further, J. Lobis points out that the pre- extraction procedure in Rivera was not likely to” vary from patient to patient depending on the particular medical circumstances or physical condition of the patient” and differs from surgical procedures for which habit evidence has been deemed inadmissible due to the varying nature of each patient’s medical condition and the actions of the doctor mentioning Glusaskas v. Hutchinson, supra.. J. Lobis holds that:

“Based on the distinctions drawn in Rivera, habit evidence pertaining to suicide assessments is not admissible on defendant’s motion for summary judgment as proof that Dr. Kelly complied with the standard of care in treating Mr. Campbell. Dr. Kelly testified that he takes into consideration a litany, of factors when performing a suicide assessment, such as the patient’s medical status, behavior, and demeanor, and generates questions and conclusions based on such observations. The care and treatment of each psychiatric patient during a suicide assessment is different and depends on the particular circumstances and presentation of that patient. Plus, a psychiatric suicide assessment is similar to a surgeon’s variable surgical procedures and unlike a dentists pre extraction procedures, which are identical regardless of the patient’s presentation. Moreover, in Rivera the Court of Appeals notes that the defendant performed the pre extraction procedure “thousands of times” based on the defendant’s testimony.

Here, it is unclear how many times Dr. Kelly performed suicide assessments. While Dr. Kelly testified that he conducted an assessment on every visit, the line of questioning that promoted his answer related to his visits with Mr. Campbell, which total to approximately 17 visits. There is no mention of Dr. Kelly performing assessments on each and every visit for every patient that presented to his office. As defendant’s expert’s opinion that Dr. Kelly conformed with the standard of care in performing suicide assessments of Mr. Campbell is predicated on habit evidence that is insufficient to support summary judgment, defendants did not meet their burden of eliminating all issues of fact “.

The court then explained that defendant’s expert’s opinion that it is customary in the field of medicine and psychiatry to document only positive findings not negative findings is insufficient by itself to support their claim for summary judgment as the opinion regarding the standard of care for documentation does not address whether the suicide assessment was conducted in the first place.

The general rule in New York remains that evidence of conduct on other occasions is usually irrelevant to prove that a person performed a particular act on a different unrelated occasion. Mazella v. Beals, 27 N.Y.3rd 694, 37 N.Y.S.3rd.46 ( 2016 ), In Mazella supra., the Court of Appeals in following the general rule held that the trial court committed reversible error in admitting into evidence a consent agreement between a physician and New York State Office of Professional Medical Conduct not to contest administrative changes of similar acts of medical negligence relating to 12 anonymous patients none of whom included plaintiff’s decedent who was specifically excluded from the agreement.

Prior to and during the trial in Mazella, supra., Dr. Beals admitted that he deviated from accepted medical practice by prescribing decedent the anti-depressant drug Paxil for over a decade while failing to monitor his condition. The defendant denied malpractice arguing that his negligence was not a proximate cause of the suicide of plaintiff’s the decedent which was attributed to superseding intervening causes including the medical care provided by the codefendant Dr. Mashinic. A jury found defendant Beals solely liable for the wrongful death of plaintiff’s decedent and he appealed alleging the trial court erroneously admitted the aforesaid consent agreement as habit and credibility evidence of his malpractice and allowing extensive cross-examination based on said negligent acts and extensive comment during summation about said admissions.

The decedent committed suicide by stabbing himself with a knife in his garage almost one month after his last visit with Dr. Beals during which time he was hospitalized and treated by other health care providers including Dr. Mashinic and had attempted suicide by tying the belt of his hospital gown around his neck.

The misconduct charges brought by OPMC against Dr. Beals alleged that he “deviated from accepted standards of medical care” by prescribing medications to 13 patients including the plaintiff’s decedent without adequately monitoring and evaluating them, and often without any face-to-face visits. The defendant agreed not to contest the charges of negligence for treatment of 12 of the 13 patients, specifically excluding decedent.

The Court of Appeals concluded that although the evidence was sufficient to support the verdict, the trial court committed reversible error in admitting the consent order in evidence during defendant’s cross-examination and permitting defendant to be questioned regarding its contents. The Court denied defendant’s argument that the subsequent care and treatment and events were a superseding intervening cause of decedent’s death stating that only where “the intervening act is extraordinary under the circumstances, not foreseeable in the normal cause of events, or independent of or far removed from the defendant’s conduct “may it possibly” break the causal nexus.” The mere fact that other persons share some responsibility for plaintiff’s harm does not absolve defendant from liability because “there may be more than one proximate cause of an injury.” The testimony of plaintiff’s psychiatric expert was credible evidence supporting the causal connection between defendant’s negligence and the tragic suicide death of decedent.

As to the admission of the consent order, the Court held that none of the exceptions to the general rule against admission of prior similar acts to prove the act in question applied. Such exceptions may include motive, intent, the absence of mistake or accident, a common scheme or plan or identify. Matter of Brandon, 55 N.Y.2d at 211. The court stated that even through the consent order was a public document and under Public Health Law section 10(2) possibly admissible evidence, under the facts of this case it should not have been admitted.

The Court explained as follows:

“The record establishes that the consent was probative of neither the defendant’s negligence nor the question of proximate cause. As part of the consent order defendant agreed not to consent negligent treatment of certain anonymous patients, none of whom was the decedent. As such defendant preserved his objections to factual allegation related to decedent and any charges of misconduct based on those allegations. Since the consent order did not establish facts concerning defendant’s treatment of decedent, it was not probative as to that issue. In an event, given defendant’s pretrial concession that he deviated from accepted medical practice, the issue of negligent treatment did not require resolution by the jury.

Further, any possible relevance of the consent order’s contents was outweighed by the obvious undue prejudice of his repeated violations of accepted medical standards….The consent order was nothing more than evidence of unrelated bad acts, the type of propensity evidence that lacks probative value concerning any material factual issue, and has the potential to induce the jury to decide the case based on evidence of defendant’s character…..”

The Court also points out that since medical malpractice requires a finding of causation, defendant could concede negligent treatment and still maintain his conduct did not constitute malpractice as a matter of law. Also, the Court was not persuaded by plaintiff’s argument that the evidence was admissible to impeach defendant’s credibility. Collateral matters only relevant to credibility are properly excluded because they distract the jury from the central issues in the case, and bear the risk of prejudicing the jury based on character and reputation.

The Court further states that we can not say that the verdict was not influenced by this powerful evidence of defendant’s professional misconduct. The plaintiff’s attorney during crossexamination and summation explicitly relied on the consent order to link prior allegations of defendant’s negligence with plaintiff’s current claims. Since this evidence could have led the jury to punish him for his unrelated misdeeds, admission into evidence was sufficiently prejudicial to require a new trial. The court also noted that a special verdict sheet be used in retrial itemizing the subcategories of damages in assisting the court’s review of monetary award.

Recently, in Goldson v. Mann , 2019 N.Y. Slip. Op. 4329, the First Department affirmed the lower court’s denial of defendant’s motion for summary judgement holding that the defendant’s expert’s affirmation was deficient in relying upon defendant’s testimony of his custom and practice in performing a physical examination of plaintiff’s shoulder during IME, therefore defendant did not meet his burden of proof. Plaintiff testified that during this examination the defendant forcefully pushed her left arm over her head and caused a new injury. There was also a difference in plaintiff’s MRI finding before and after examination and statements by treating physician that plaintiff suffered a new injury after the IME.

The court held as follows:

“Defendant’s testimony did not establish a deliberate and repetitive practice sufficient to show evidence of his behavior during plaintiff’s examination, as he testified that his examination varied based upon the examinee (see Rivera v. Anilesh, 8 N.Y.3rd 627, 634 (2007). Therefore, the expert’s reliance on such testimony to conclude that defendant had not deviated from the accepted standard of care rendered his affirmation insufficient (compare, id.at 635-636) Defendant’s expert also failed to establish that defendant did not cause or exacerbate plaintiff’s left shoulder condition……”

Recently, the Second Department held in a medical malpractice claim of negligent hernia repair surgery involving suturing of a Kugel Composix mesh patch to plaintiff’s abdominal wall that under the circumstances presented here, defendant physician may not testify as to his habit in performing the surgical procedure. Martin v. Timmins,178 A.D.3rd 107, 110 N.Y.S. 3rd 707 (App. Div. 2019). This type of mesh patch contained a pocket the smooth part of which was to be placed inside to protect the intestines while the rough part would be placed against the abdominal wall to grow into the wall. In this case the rough side was allegedly wrongly placed against the internal organs adhering to the intestines and omentum causing severe injuries. The operative report prepared by the defendant did not indicate how many sutures were used to secure the mesh or where the sutures were placed. A motion in limine to preclude defendant’s testimony of his custom and practice related to performing incisional hernia repairs using the Kugel Composix mesh patch was granted by the trial court. After plaintiffs presented their case, the defendant made an offer of proof regarding his custom and practice of placing sutures during a ventral hernia repair using mesh patches. Contrary to its pretrial ruling the court admitted the defendant’s testimony as to his general method for suturing mesh patches during his hernia repairs as evidence of custom and practice. The defendant testified he would suture around the periphery of the mesh patch. However, with the Kugel Composix mesh the procedure was to “ go through the pocket “ and place the sutures circumferentially along the outside of the mesh patch. Defendant further testified that for all hernia repairs using mesh patches “ ypu place sutures…around the edge of the mesh “ then check for any areas with gaps “ where something could poke through “. Then, if there were gaps, “ you can put another suture if need be .”

In reversing a defendant’s verdict, the court stated:

“a party can rely on custom and practice evidence “to fill in evidentiary gaps ‘where the proof demonstrates a deliberate and repetitive practice by a person in complete control of the circumstances” citing Rivera and Halloran, supra., “However, evidence of ‘conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances’ is not admissible as custom and practice evidence” citing again Rivera and Halloran, supra.

The court explained:

“…..the evidence did not demonstrate that the defendant’s suturing of the Kugel Composix mesh patch represented a deliberate and repetitive practice by a person in complete control of the circumstances…..The defendant’s procedure for suturing mesh patches during hernia repairs lacked unvarying uniformity and was ‘likely to vary from to time to time depending upon the surrounding circumstances.’ ” Citing Halloran, supra.

The court referred to the defendant’s testimony that whether there were gaps requiring additional sutures would depend upon the contour of the patient’s abdominal wall which would differ based upon whether a patient was thin or obese. Thus, the placement of the sutures depended upon the surrounding circumstances which were not within the defendant’s complete control.

The court explained:

:….Although the defendant testified he performed hundreds of hernia repairs using mesh patches, he could not remember how many times he used the Kugel Composix mesh patch before he performed the injured plaintiff’s surgery. He testified that he used the Kugul Composix mesh patch at least ‘a couple times’ before he performed the injured plaintiff’s procedure.”

The court referenced the fact that the Kugel Composix mesh patch had features different from other meshes including a “pocket” designed to protect the intestines. The defendant testified that the surgeon would go in through the pocket when placing the sutures which differed from the procedure used for other types of mesh patches. Under the circumstances the defendant did not establish a “sufficient number of instances of the conduct in question” citing Halloran, supra. The error in Supreme Court’s admission of this habit evidence could not be considered harmless as it went right to the ultimate issue as to whether the defendant negligently performed the hernia repair and therefore reversed judgement in favor of defendant.

Contrary to its opinion in Martin, supra., the Second Department in Heubish v. Baez, 2019 N.Y. Slip.Op. 8826 affirmed judgment upon a jury verdict in favor of defendant denying plaintiff’s motion for a new trial and agreeing with the court below in allowing into evidence defendant’s testimony about his habit in performing total knee replacement surgery. The plaintiff alleged Dr. Baez was negligent during his surgery in failing to properly fit prosthesis to his left knee, overstuffed his left knee, and failed to provide good and accepted postoperative care causing his medical condition to deteriorate and ultimately causing the need for revision surgery.

The court held as follows:

“Contrary to plaintiff’s contention, Baez’s habit testimony as to how he performs knee replacement surgeries, including that the methodology for measuring and dissecting 10 millimeters of the plaintiff’s patella did not vary from patient to patient, that the manner in which he performed knee replacement surgeries was done in a deliberate, identical and repetitive manner on every patient, and that he was in complete control of the circumstances concerning the measuring and dissection of plaintiff’s patella, was properly admitted by the Supreme Court (citing Rivera and Halloran, supra.). the evidence supported a finding that Baez’s surgical techniques represented a deliberate and repetitive practice by a person in complete control of the circumstances (cf Martin v. Timmins, supra.

CONCLUSION

In sum, the above case law demonstrates that habit evidence, a form of circumstantial evidence, may be admissible in limited medical malpractice cases by proof of custom and practice to raise an inference of due care or lack of due care of an act or occurrence on a particular occasion when there is no recollection of the facts. Such evidence may be used in support of or in opposition to a motion for summary judgement. However, circumstantial evidence of habit is not a 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 to unjustifiably excuse an act or omission of carelessness or negligence when the party has no recollection of the events. One can only imagine the unlimited circumstances where meritorious claims or defenses may be defeated by abuse of circumstantial evidence. Otherwise, we may one day be faced with evidence of a party’s custom or practice to do the right thing or to err is only human to support a standard of care regardless of the facts of the case. As the well-known Temptations hit song lyrics goes “But it was just my ‘magination , once again. Running away with me. Tell you it was just my ‘ magination , running away with me”. The truth or consequences of custom and practice evidence may forecast the outcome.

*Alan W. Clark is of counsel to the Law Firm of Duffy & Duffy, PLLC, Uniondale, News York and managing partner of the Law Firm of Alan W. Clark and Associates, L.L.C. Mr. Clark is Board Certified and Recertified in Medical Professional Liability by the ABPLA and for the past 42 years has represented injured patients. Mr. Clark is a sustaining member of AAJ; NYSTLA; NCBA; NYSBA; NSTLA; SCBA and ABPLA. He also serves on the Board of Directors of NYSTLA and lectures for numerous Bar Associations.