Plaintiff Ann Reynolds Lee filed her Virginia medical malpractice lawsuit against Dr. William Manson, UVA Physicians Group, and Dr. Troy Davis. She alleged that in September 2020, she underwent an anterior cervical discectomy and fusion at UVA Medical Center. Dr. Manson was Lee’s attending anesthesiologist, and Dr. Davis was a resident physician working under Dr. Manson’s supervision during the procedure.
Lee’s procedure involved electrical nerve stimulation, which can cause a patient to involuntarily bite down while under anesthesia. To address this issue, “bite blocks” are typically placed in the patient’s mouth. This precaution was taken for Lee. The dispute at trial was whether Dr. Manson was negligent in monitoring, placing or maintaining the bite blocks during Lee’s surgery. Lee alleged that, due to Dr. Manson’s negligence, she suffered severe and permanent injuries including the severe laceration of her tongue.
The trial court allowed habit or routine evidence to be introduced during trial as it related to Dr. Manson. Dr. Manson testified that it was his habit and routine to direct and supervise the resident physician’s placement of bite blocks in the patient’s mouth, and Dr. Manson also explained his habit and routine after the bite blocks were placed in the patient’s mouth: “So after the bite blocks go in, my personal preference is I will insert my gloved finger into the mouth and what I’m attempting to do is feel along the lingual surface of the teeth[,]” and “[t]hen once that’s done I insert my finger on this side and do the exact same thing and this takes seconds to perform.” Dr. Manson stated that his routine never changed when placing bite blocks. On cross-examination, Dr. Manson reconfirmed that he did “not have a distinct recollection of” Dr. Davis placing the bite blocks in Lee’s case, nor did he recall checking and monitoring the bite blocks. Dr. Manson testified that he discovered Lee’s tongue injury at the conclusion of her surgery.
The trial court instructed the jury: “Evidence of the “habit” of a person or the “routine practice” of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the “habit” or “routine practice.””
The Virginia medical malpractice jury returned a defense verdict. The plaintiff appealed.
Lee asserted on appeal that the instruction’s “language ‘is relevant to prove’ confuses the jury” because “a jury could easily misconstrue those words to be ‘habit = proof.’” Lee further argued that the language in the instruction about the routine practice of an organization was not supported by any evidence in the case. Last, Lee asserted that the habit instruction “place[d] undue weight on the defendants’ habit testimony.”
The Court of Appeals of Virginia stated in its August 12, 2025 Opinion: “The question of how habit and custom evidence should be utilized in medical malpractice actions has proven to be complex and somewhat controversial … such evidence is relevant for purposes of admissibility … habit evidence, once established, may be admissible in civil cases as evidence that a person acted in conformity with their “routine practice.””
“The problem in this case is that there is a significant difference between the admissibility of such evidence (which was the object of the statute) and its believability. While admissibility falls within the aegis of the trial judge, credibility is the domain of the factfinder—and the admissibility of such evidence, obviously, does not automatically make it believable. This tension between admissibility and credibility is at the forefront of Lee’s challenge here because direct language from an admissibility statute was used to tell jurors how to weigh the evidence … While the legislature, via Code § 8.01-397.1, has made clear that Dr. Manson’s habit evidence is generally admissible—“whether corroborated or not and regardless of the presence of eye witnesses”—Lee asserts there is a danger, here, that habit evidence was permitted to overwhelm other tangible evidence for credibility purposes under the instruction granted in this case. At a minimum, she posits that the instruction is very confusing. We agree.”
The Virginia appellate court stated: “We conclude that the habit instruction relied upon in this case is confusing and
misleading … Given the pivotal role of habit evidence in this case, and the confusing nature of the habit instruction
utilized below, we conclude that there is a substantial likelihood that the granting of the disputed instruction significantly harmed Lee’s case before the jury … we conclude that the habit instruction granted in this case was confusing and misleading, necessitating a retrial.”
Source Lee v. Manson, M,D., Record No. 0306-24-2.
If you or a loved one suffered harm as a result of medical negligence in Virginia or in another U.S. state, you should promptly find a Virginia medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
Click on the “Contact Us Now” tab to the right, visit our website, or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your state who may assist you.
Turn to us when you don’t know where to turn.
