The Supreme Court of the State of New York, Appellate Division, Second Judicial Department (“New York Appellate Court”), in its decision filed on October 16, 2019, stated: “The issue on this appeal is whether a physician performing a surgical procedure who has no written record nor an independent recollection of what he or she specifically did in performing that procedure can testify based upon what he or she usually does in performing that procedure based upon their “habit.” We hold that, under the circumstances presented here, the defendant physician may not testify as to his habit in performing this surgical procedure.”
The New York Appellate Court stated that 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. Evidence of such a practice is generally admissible to allow the inference of the persistence of the habit on a particular occasion. 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.
The New York Appellate Court explained that custom and practice evidence draws its probative value from the repetition and unvarying uniformity of the procedure involved as it depends on the inference that a person who regularly follows a strict routine in relation to a particular repetitive practice is likely to have followed that same strict routine at a specific date or time relevant to the litigation. To justify the introduction of habit evidence, a party must be able to show on voir dire, to the satisfaction of the court, that the party expects to prove a sufficient number of instances of the conduct in question.
In the case it was deciding, the New York Appellate Court stated that the defendant did not show that he expected to prove a sufficient number of instances of the conduct in question. Although the defendant testified that he had performed hundreds of hernia repairs using mesh patches, he could not remember how many times he had used the Kugel Composix mesh patch before he performed the injured plaintiff’s surgery. He testified at his deposition that he had used the Kugel Composix mesh patch at least “a couple times” before he performed the injured plaintiff’s procedure. Although the defendant contends that the procedure for suturing the Kugel Composix mesh patch was the same as for other mesh patches, the Kugel Composix mesh patch had features that were different from other mesh patches, including a “pocket” intended to protect the intestines. The defendant testified that a surgeon would “go in through the pocket” when placing the sutures. Therefore, the suturing procedure for the Kugel Composix mesh patch used on the injured plaintiff differed from the suturing procedure for other types of mesh patches. Under the circumstances, the defendant did not establish a “sufficient number of instances of the conduct in question.”
Source Martin v. Timmins, 2019 NY Slip Op 07391.
If you or a loved one suffered a serious injury (or worse) as a result of medical negligence in New York or in another U.S. state, you should promptly find a New York medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
Visit our website or call us toll-free in the United States at 800-295-3959 to be connected with medical malpractice attorneys in your state who may assist you.
Turn to us when you don’t know where to turn.