Under all too familiar circumstances, medical malpractice cases will come to trial with issues based in evidence that had long been forgotten. The claims important at trial have emerged over the course of months to years of pretrial proceedings, during which the same medical procedures were repeated hundreds if not thousands of times. There are instances in which the participants in those medical procedures know what happened even if they do not specifically recall it. Courts and counsel need to be prepared to identify those instances when testimony on custom and habit is admissible and who can provide it.

Rivera v. Anilesh, 8 NY3d 627 (2007), was a case brought against oral surgeons and dentists which began with a lower mandibular block administered to provide anesthesia for a tooth extraction. Although the patient contracted a severe infection weeks later, her initial procedure was without recognized complication. There was no event to freeze the moment in memory, and the witnesses were later called upon to testify to facts which until then they had no particular reason to recall. In particular, Dr. Indu Alinesh, had testified that in more than 17 years of practice, she had administered the same type of injection to multiple patients each day. She had no memory which could distinguish this patient’s procedure from others, as she had no recollection of the treatment she had rendered that day.

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