December 4, 2020

The New York Appellate Division, First Department held in its opinion dated November 10, 2020: “we find that even if an appropriate foundation was laid for the habit testimony that defendants’ expert relied on, the motion for summary judgment still should have been denied. Where habit evidence is admitted, it only establishes that the claimed behavior or conduct was persistent and repeated in similar circumstances … Evidence of habit only provides a basis for the jury to draw an inference, but it cannot be the basis for judgment as a matter of law … ”

“Plaintiffs’ bariatric expert observed that although Dr. Fielding testified about how he usually performed LAP-Band surgeries, the doctor had no independent recollection of this patient who had previously undergone other abdominal surgeries. Although Dr. Fielding testified how he would have checked a patient’s bowel during the surgery to see whether there was any perforation and leakage of its contents, plaintiffs’ expert observed there was no mention of this in Ms. Guido’s intraoperative records as having been done. The fact that Dr. Fielding usually inspects and palpates a patient’s bowel does not conclusively prove that he did so on this occasion. There is an issue of fact whether the practice described by Dr. Fielding was followed by him in this particular case, calling into question whether the perforation could have been discovered had the procedure been followed.”

The Underlying Facts

The plaintiff, Maria Guido, suffered a perforation of her bowel during a LAP-Band procedure performed by defendant George Fielding, M.D.  The plaintiff alleged in her New York medical malpractice lawsuit that her bowel perforation should have been discovered intraoperatively during the LAP-Band procedure. It was undisputed that the perforation was discovered within days, while she was recovering in the hospital, and corrective surgery was immediately performed thereafter.

Dr. Fielding testified during his deposition that during open LAP-Band procedures, he generally examines a patient’s bowel, both visually and through palpitation, before he completes the procedure and closes the patient. Dr. Fielding testified that he did not remember the plaintiff, and that he did not have any independent recollection of her particular LAP-Band surgery. Dr. Fielding did independently recall the second corrective surgery he performed on her.

Dr. Fielding testified that he had performed hundreds of laparoscopic and other bariatric surgeries over the years. Dr. Fielding testified that this specific surgery had started as a laparoscopic procedure, but then it had to be converted to an open surgery because the plaintiff had many adhesions. Dr. Fielding also testified, based upon the medical records, that the plaintiff had undergone numerous prior abdominal surgeries and they had resulted in very dense adhesions where the bowel was stuck to the wound. Still relying on medical records, Dr. Fielding testified that he used scissors to dissect the bowel and then proceeded to complete the placement of the LAP-Band, and that the placement proceeded in the same manner as it would have with a laparoscopic surgery.

When asked to more completely describe the process of dissecting the bowel from the wound, Dr. Fielding testified that he did not remember, but then proceeded to describe his usual custom and practice in doing so, which would have included a visual inspection of the bowel. When asked whether he did anything else to see whether there was damage to the bowel, Dr. Fielding testified that he would have been gently lifting, lysing and feeling the loops of the bowel as he snipped it away from the adhesions and looking for signs of yellow bile coming out of the bowel. Dr. Fielding’s intraoperative report concerning the LAP-Band surgery contains no reference whatsoever to whether he visually examined the small intestine or any notation on the presence or absence of bile or other leaking intestinal matter. The medical records relating to the subsequent corrective surgery to remove the LAP-Band and correct a leak from the bowel, however, reflect that “the small intestines were carefully examined” and there is an entry by Dr. Fielding stating that he detected “no evidence of ongoing intestinal content leak . . . .” The corrective surgery operative report also states the discovery of a 0.5 cm incision in the small intestine that had been completely sealed off by the omentum, a thick layer of abdominal fat.

New York Appellate Court Opinion

The New York Appellate Court stated that a defendant makes a prima facie case of entitlement to summary judgment in a medical malpractice action by submitting an affirmation from a medical expert establishing that the treatment provided to the injured plaintiff comported with good and accepted practice or that the plaintiff was not injured thereby. An expert’s opinion must be based upon information personally known to the expert, information in the court record or hearsay material, provided that it is of a kind accepted in the profession as reliable in forming a professional opinion or it comes from a witness that is subject to full cross-examination at trial.

The New York Appellate Court stated that in the present case, the only evidence regarding whether Dr. Fielding actually palpitated the bowel during the LAP-Band surgery was his testimony based on his custom. Dr. Fielding did not have any independent recollection of whether he actually palpated the bowel to rule out perforations during the plaintiff’s LAP-Band procedure, and nothing in the hospital records indicates that he did so.

The New York Appellate Court further stated that in order for an expert’s opinion based on habit testimony to be considered by a court on a doctor’s motion for summary judgment in a medical malpractice action, a foundation must be laid for the admissibility of the underlying habit testimony. In general, evidence of conduct on other occasions is irrelevant to prove that a person performed a particular act on a different, unrelated occasion. Evidence of habit is, however, admissible to show that someone acted in conformity with that habit on a particular occasion. In order to qualify as a habit or routine practice, the proponent must show that it is a deliberative and repetitive practice by a person in complete control of the circumstances. Habit evidence is distinguishable from conduct, no matter how frequent, that is likely to vary from time to time depending on the circumstances. Habit or repetitive routine is admissible to fill in any “evidentiary gaps” involving that person in similar circumstances to infer they were handled the same way. Where medical procedures are concerned, habit evidence is admissible to establish that routine or mundane procedures were followed.

The New York Appellate Court held: “in order to lay a foundation for its admission, Dr. Fielding needed to establish that the practice of palpitating the bowel for perforations was routinely done by him in his open bariatric surgeries, and that it did not vary from patient to patient. He did not do so. He failed to offer testimony or provide any other proof regarding the number of times he had followed such a procedure during the hundreds of bariatric surgeries he had performed … Nor did Dr. Fielding describe the LAP-Band procedure as being routine, without variation from patient to patient. Since Dr. Fielding did not lay a proper evidentiary foundation for his testimony based on custom and practice, and the expert’s opinion was made in reliance on that testimony, defendants did not satisfy their burden of proving a prima facie case entitling them to summary judgment … Defendants’ motion should have been denied, because they did not prove a prima facie case, that Dr. Fielding did not deviate from the accepted standard of care in failing to diagnose and repair plaintiff’s bowel perforation intraoperatively.”

Source Guido v Fielding, 2020 NY Slip Op 06391.

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