In most medical malpractice actions, the defendants and other medical professionals who rendered the care and treatment that is the subject of the lawsuit do not have specific recollections of all of the events. Therefore, they often testify about their custom and practice. Seldom, if ever, does a defendant testify to a custom and practice that violates the standard of care. Accordingly, this testimony can be very self-serving. It has been 21 years since we addressed the case law analyzing the admissibility of evidence of habit or routine practice. See Moore & Gaier, Evidence of a Doctor's Routine Practice, N.Y.L.J. Dec. 1, 1998, p. 3. There have since been a handful of significant decisions on the issue, and they are the subject of this column.

By way of background, in Halloran v. Virginia Chemical, 41 N.Y.2d 386 (1977), the Court of Appeals addressed the admissibility of evidence of habit in negligence actions. Before that, neither plaintiffs nor defendants were permitted to submit proof of prior conduct to prove negligence or lack thereof. The plaintiff in Halloran, a mechanic, was injured when a can of refrigerant manufactured by the defendant exploded. The plaintiff testified that the explosion occurred while he was heating the contents of the can in order to loosen it by submersing it in water at a temperature of 90 to 100 degrees, which was the proper method. Heating at higher temperatures, however, would be dangerous, as indicated on the warning label. At trial, the defendant was precluded from eliciting testimony from a non-party witness that the plaintiff had previously used an immersion heating coil to heat the contents of refrigerant cans, which the plaintiff denied ever doing. The Court of Appeals reversed, finding that if the evidence indicated that the plaintiff habitually or regularly used a heating coil for that purpose, it would be admissible to prove that he followed that procedure on the day of the explosion. The court stated that such evidence is not admissible if it is "likely to vary from time to time depending upon the surrounding circumstances," but that evidence of a "deliberate and repetitive practice" should be admissible. To justify the introduction of such evidence, the court held, the proponent must show "a sufficient number of instances of the conduct in question" to warrant a finding of habit or regular usage.

The Appellate Division thereafter applied Halloran in malpractice actions to questions concerning the admissibility of testimony concerning a doctor's custom and practice. See Lindeman v. Slavin, 184 A.D.2d 910 (3d Dept. 1992); Glusaskas v. Hutchinson, 148 A.D.2d 203 (1st Dept. 1989); Rigie v. Goldman, 148 A.D.2d 23 (2d Dept. 1989). The Court of Appeals first took up the issue in this context in Rivera v. Anilesh, 8 N.Y.3d 627 (2007), a dental malpractice action.

The plaintiff in that case alleged that the defendant negligently injected anesthesia during a tooth extraction, and identified the second injection during the procedure as having caused extreme pain. The defendant moved for summary judgment, relying on her deposition testimony that she did not recall what occurred during the extraction, but that the administration of this type of injection was a routine procedure that she had done with at least three to five patients per day for 18 years. She gave "a step-by-step description of the procedure she used to give injections to her patients and claimed that, when a second injection was necessary, she administered it at the same site as the first injection." The defendant also testified that if a patient complained of unusual pain during a procedure, she would make a notation in the chart and that no such note existed in this case. Based on the defendant's description of her custom and practice, her expert opined that her treatment was within the standards of care. In opposing the motion, the plaintiff relied on her own testimony and the affirmation of an expert, who opined that the defendant departed from the accepted practice because a properly administered second injection in the same location as a first would not cause any pain because that part of the mouth would be numb from the first injection, and that the second injection therefore could not have been in the proper location.

The Supreme Court granted the defendant's motion, and a divided Appellate Division reversed. The majority found that the defendant's testimony about her custom and practice was inadmissible and could not raise an inference that she complied with that practice in that case. Two judges concurred in the result, finding that the defendant's testimony of her routine practice was admissible, but that the plaintiff's testimony and the opinion of her expert established an issue of fact. The case went up on a certified question.

The Court of Appeals held that the record "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 conduct," noting that she established that she "performed this procedure in the same manner thousands of times." The court rejected the suggestion that the nature of the injection process renders it "unsuitable for consideration as habit evidence," and noted the absence of any evidence that the injection procedure "would vary from patient to patient depending on the particular medical circumstances or physical condition of the patient." It further found that this evidence was properly considered in conjunction with the summary judgment motion, and that it was sufficient to shift the burden to the plaintiff to establish issue of fact. It went on to find that the plaintiff's evidence did just that, and therefore affirmed the denial of the motion.

Rivera has since embodied the standard for the admissibility of testimony concerning a doctor's custom and practice in malpractice actions. In Thomas v. Samuels, 60 A.D.3d 1187 (3d Dept. 2009), the plaintiff claimed that the defendant surgeon departed from proper practice by cutting or burning her long thoracic nerve during a breast biopsy. The defendant took the position that there was neither a cut nor a burn, but rather that the nerve must have been subjected to a stretch injury during surgery. The trial court instructed the jury regarding the defendant's habit in performing surgeries. After the jury returned a verdict for the defendant, the plaintiff appealed on the ground that the instruction was error. The Third Department found, and the defense conceded, that the instruction was error because varying conditions would be encountered during surgical procedures, but also found the error harmless because there was "no real evidence of defendant's habits" in performing biopsies and defense counsel did not rely on evidence of habit on opening or summation.

In Goldson v. Mann, 173 A.D.3d 410 (1st Dept. 2019), where the plaintiff claimed that the defendant injured her while performing an independent medical examination (IME) for a shoulder injury, the First Department affirmed a denial of summary judgment to the defendant, finding that he failed to meet his prima facie burden in moving for such relief. While the affirmation of the defendant's expert relied on his testimony regarding his custom and practice of examining patients during IMEs, that 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 depending on the examinee." Therefore, the expert's reliance on that testimony rendered the affirmation insufficient.

Most recently, in Martin v. Timmins, ___ A.D.3d ___, 2019 WL 5198892 (2d Dept. 2019), the Second Department addressed the issue in a lengthy opinion. As framed by Justice Maltese, who authored the opinion, the issue was "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.'" The court held the defendant doctor was not properly permitted to so testify relative to the surgical procedure in that case, and therefore reversed a judgment in the defendant's favor.

The defendant performed surgery to treat the plaintiff's incisional hernia by suturing a Kugel Composix (KC) mesh patch against the plaintiff's abdominal wall. One side of the patch was rough, which was to be placed against the abdominal wall so that the abdominal wall would grow into it. The other side of the patch was smooth, so that organs would not stick to it. The KC patch also had a pocket to protect the intestines, which other mesh patches did not have. After the procedure, it was ultimately discovered that a portion of the mesh patch was displaced and was hanging down from the abdominal wall, and that the rough side of the patch, which should have been facing the abdominal wall, was facing the plaintiff's internal organs and had adhered to her intestines and omentum.

The plaintiffs claimed that the defendant failed to properly suture the patch to the abdominal wall. The defendant testified at deposition that he had no independent recollection of the surgery. His operative report did not indicate how many sutures he used to secure the patch or where the sutures were placed. Prior to trial, the plaintiff moved to preclude any testimony from the defendant as to his custom and practice in performing incisional hernia repairs using the KC patch. The trial court granted the motion, finding that the defendant had failed to demonstrate that the procedures were invariably used in every prior surgery and his custom and practice was, therefore, inadmissible under Rivera.

After the plaintiffs rested, however, the defendant made an offer of proof as to his practice for placing sutures during a ventral hernia repair using mesh patches. The trial court then admitted the defendant's testimony of "his general method for suturing mesh patches during hernia repairs" as evidence of his custom and practice. The defendant then testified before the jury that the procedure for performing a hernia repair with a mesh patch was to suture around the periphery of the patch. However, with the KC patch, the procedure was to go in through the pocket and place sutures circumferentially along the outside of the patch. The defendant also testified that for all hernia repairs using mesh patches, you place sutures around the edge of the mesh and then check for any areas with gaps where something could poke through, and if there are areas with gaps you can place another suture if needed. The jury returned a verdict in favor of the defendant.

In analyzing the issue of whether the defendant's testimony was properly admitted, the court, citing Halloran, Rivera and Galetta v. Galetta, 21 N.Y.3d 186 (2013)—an action in which the proponent of a challenged prenuptial agreement relied upon the custom and practice of the notary—observed that a party can rely on custom and practice to fill in evidentiary gaps where the proof demonstrates a deliberate and repetitive practice by someone in complete control of the circumstances, and that this evidence is "admissible to allow the inference of the persistence of the habit on a particular occasion." It further noted that conduct which is frequent but likely to vary from time to time is not admissible custom and practice evidence. Quoting Galetta, the court explained, "'[c]ustom 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.'" Therefore, the admission of such evidence requires the proponent to demonstrate on voir dire that he or she will prove a sufficient number of instances of the conduct in question.

In holding that the testimony of the defendant surgeon about his custom and practice was inadmissible, the court found it deficient in two respects. First, it found that "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." Instead, "the defendant's procedure for suturing mesh patches during hernia repairs lacked unvarying uniformity and was 'likely to vary from time to time depending upon the surrounding circumstances.'" Explaining why this was so, the court noted:

When making his offer of proof, the defendant testified before the Supreme Court that his procedure was to place sutures two to three centimeters apart circumferentially around the edge of the mesh patch. Then, he examined the area. If there were gaps that "appear[ed] to be too large," he would place additional sutures. The defendant further testified that whether the sutures were placed two centimeters apart or three centimeters apart, and whether there were gaps requiring additional sutures, would depend upon the contour of the patient's abdominal wall. The contour of the abdominal wall 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.

Second, the court found that the defendant did not demonstrate that he would prove a sufficient number of instances of the conduct in question. It noted that while he testified he performed hundreds of hernia repairs using mesh patches, he could not recall how many times he used the KC patch before he performed the subject surgery. At his deposition he indicated that he had previously used it "at least 'a couple times.'" And while he asserted that the procedure for suturing the KC patch was the same as for other mesh patches, the KC patch had unique features, including the pocket, which the defendant testified a surgeon would go in through when placing sutures. Since the suturing procedure for the KC patch differed from the suturing procedure for other mesh patches, the defendant did not establish a sufficient number of instances.

Finally, the court found that the admission of the defendant's custom and practice testimony was not harmless error because it "bore upon the issue of whether the defendant negligently performed the injured plaintiff's hernia repair, which was the ultimate issue to be determined by the jury." Therefore, it required reversal and a new trial.

These cases demonstrate with pristine clarity the type of proof necessary for a physician's testimony as to custom and practice to be admissible, and that those standards are applicable both at trial and on summary judgment. As distilled in Martin, the analysis that has its genesis in Halloran has two components—one qualitative and the other quantitative. The qualitative component requires proof of a deliberate and repetitive practice that is invariably adhered to by the person seeking to admit the evidence. Any factors that may cause that practice to vary depending on either the patient or the circumstances will disqualify the evidence.

The quantitative component, while a numbers issue, also has a substantive aspect. Whatever the number is, it must involve the identical procedure. The proponent cannot get custom and practice evidence admitted by testifying to having performed a procedure or examination thousands of times if they were not all uniformly done in the same manner. In other words, if there are subsets within the procedure or exam, that is the number that must be established. Hence, performing hundreds of mesh patch surgeries did not suffice in Martin, because the defendant could only say that he had used that particular patch at least a couple of times.

The two components for the admissibility of custom and practice testimony presumably precludes such evidence from physicians who were still in residency or early in their practice at the time of the events. It is difficult to conceive that they could have developed an invariable practice with a sufficient number of instances with such limited experience.

The requirements for the admission of custom and practice testimony are important considerations in many malpractice actions, and a proper analysis may prevent the admission of speculative and self-serving testimony.

Thomas A. Moore is senior partner and Matthew Gaier is a partner of Kramer, Dillof, Livingston & Moore.