Download Habit evidence

June 2007
Medical Malpractice Alert
Habit evidence
By decision and order dated June 12, 2007, the New York Court of Appeals held in Rivera v. Anilesh
that evidence of a dentist’s routine procedure for administering injections of anesthesia was admissible
to support a motion for summary judgment. The plaintiff, Margarita Rivera, went to her dentist, Dr. Indu
Anilesh, to have a tooth extraction, which was preceded by a “lower left mandibular block injection.”
Because she continued to have sensation in that location, her dentist gave her a second injection of
anesthetic. Rivera claimed she experienced extreme pain from the second injection. Several days
following the procedure, she experienced pain and fever. A couple of weeks later, she was diagnosed
with a severe jaw infection that required hospitalization. Rivera’s complaint alleged that her dentist
negligently performed the injections of anesthesia and extraction of the tooth, and failed to properly
manage the ensuing infection.
In this malpractice action, the question at issue was whether the dentist’s routine procedure for
administering an anesthetic injection is admissible, as habit evidence, to support an inference that the
same procedure was used when treating this patient. Under the standard articulated in Halloran v.
Virginia Chems, 41 N.Y.2d 386 (1977), the Court of Appeals found that the record supported the
admissibility of this routine procedure in light of the frequency that this technique was used in the
dentist’s practice and the routine nature of the conduct.
With regard to habit evidence, the court found that there was no evidence suggesting that the dentist’s
pre-extraction injection procedure would vary from patient to patient depending on the particular
medical circumstances or physical condition of the patient. Thus, the record demonstrated “proof of a
deliberate and repetitive practice” – the mundane administration of a local anesthetic prior to a relatively
routine tooth extraction by a trained, experienced professional “in complete control of the
circumstances” (Halloran, 41 N.Y.2d at 392).
This decision provides a roadmap for litigants, telling them how custom and practice evidence may be
proffered, and how it can be challenged. If, for example, a physician testifies that the procedure is
indeed routine and repetitive, it would likely be deemed admissible. However, the court suggested that
every surgery is unique, varying because of the nature of the patient’s medical condition and the actions
of the doctor. Thus, if there is evidence that there was something unique about the procedure at issue,
the custom and practice testimony might be deemed inadmissible, or at least insufficient to state a prima
facie showing of entitlement to summary judgment. The contours of the habit-evidence rule have been
clarified by Rivera. Such testimony may be offered in lieu of documentary corroboration. Informedconsent warnings may also be established through custom-and-practice testimony, as well as the
protocols ordinarily followed during routine and otherwise noninvasive medical procedures.
For more information on this ruling, please contact Richard E. Lerner at [email protected]
or Marshal S. Endick at [email protected].
Contact us at [email protected].
This communication is for general guidance only and does not contain definitive legal advice.
© 2007 Wilson Elser Moskowitz Edelman & Dicker LLP. All Rights Reserved.