Can evidence of a health care provider’s custom and practice be admissible as habit evidence to prove a fact in malpractice cases? Can such evidence be proof in support of or against the standard of care sufficient to support or oppose a motion for summary judgment for or against a party? Can such evidence arise from a creative imagination and be a poor excuse for medical negligence? The simple answer to all is yes. Therefore, the courts must choose to exercise much scrutiny and discretion before allowing such evidence to be admissible.
The discussion begins with the seminal Court of Appeals decision in Halloran v. Virginia Chemicals,1 a products liability case in which the defense sought to introduce evidence of plaintiff’s “usage and practice” to use an immersion coil to heat the water into which the freon (the product) was placed, causing the explosion seriously injuring the plaintiff.
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