In Nigro v. Benjamin, 155 A.D.2d 872 (4th Dept. 1989), the Fourth Department, in citing Halloran, 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.2d 729 (4th Dept. 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 judgment upon a jury verdict in favor of defendant, the Fourth Department, in Biesiada v. Suresh, 309 A.D.2d 1245 (4th Dept. 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. 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.2d 633 (3d Dept. 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 seven-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), Judge 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, pleats of skin gather under the breast from four to six 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, but cannot be the basis for summary judgment citing Lindeman v. Salvan, 184 A.D.2d 910 (3d Dept.). 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. Judge Martin did not refer to the Court of Appeal's opinion in Rivera v. Anilesh, 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, Judge Joan 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 two dates in question was inadmissible as not satisfying the requirements set forth in Halloran and Rivera.

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's psychiatric history, and to make a notation only in the event of a "positive" finding. Judge 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. Further, Judge 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. Judge Lobis holds:

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.3d 694 (2016 ). In Mazella, 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, 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 decedent, which was attributed to superseding intervening causes including the medical care provided by the co-defendant 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 §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 cannot say that the verdict was not influenced by this powerful evidence of defendant's professional misconduct. The plaintiff's attorney during cross-examination 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.3d 107 (2d Dept. 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 "you 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).

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).

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).

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. 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, 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). 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).

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 in Uniondale and managing partner of the Law Firm of Alan W. Clark and Associates, L.L.C.