The Second Department of the Appellate Division, New York State Supreme Court, has limited the role of testimony as to custom and practice in establishing what a defendant physician did in a specific instance in medical malpractice cases in Martin v Timmins, 2019 NY Slip Op 07391 (2d Dep’t 2019). The Court ruled the testimony of defendant, a surgeon, concerning his custom and practice in performing a hernia repair surgery was inadmissible.

Generally, New York Courts have allowed physicians to testify as to custom and practice as habit evidence supporting an inference they acted in accordance with their custom and practice in a specific instance. Rivera v. Anilesh, 8 N.Y.3d 627 (2007). In Rivera, the Court of Appeals allowed the admission of testimony of a dentist regarding his custom and practice for administering anesthesia. The Court stated such testimony is admissible when there is proof of a deliberate and repetitive practice by a person in complete control of the circumstances. Rivera, 8 N.Y.3d at 634.

The Second Department in Martin limited the ruling in Rivera to specific procedures which are repetitive and do not vary from patient to patient. The defendant’s hernia repair procedure in Martin varied depending on the contour of the abdominal wall and whether the patient was thin or obese – which would affect the spacing of the sutures. Therefore, the Court determined the procedure lacked the “unvarying uniformity” necessary to be admissible for custom and practice.

As a result of this ruling, testimony on custom and practice by defendants in medical malpractice cases may be limited to procedures or practices that are repetitive and involve “unvarying uniformity”. A defendant physician may not be able to testify to custom and practice with most surgeries which differ depending on the patient and the specific situation. However, as in Rivera, testimony concerning custom and practice for a procedure that does not vary, such as administration of dental anesthesia, will likely still be admissible.

The importance of good, detailed record-keeping by physicians is clearly validated by this ruling. The reason the defendant in Martin needed to testify as to custom and practice was because, “[t]he operative report prepared by the defendant did not indicate how many sutures the defendant used to secure the mesh patch or where the sutures were placed.” Timmins, 2019 NY Slip Op 07391. A more detailed operative report would have completely alleviated the need for testimony as to custom and practice.

Additionally, this case demonstrates the need for careful testimony at a physician defendant’s deposition. In Martin, the defendant testified he would not perform the operation the exact same way each time as it would vary depending on the patient. If it is necessary to use custom and practice testimony, a defendant will need to establish the procedure or practice did not vary, but she or he performed it the same way every time. If a defendant is not able to establish this, it may be very difficult to admit custom and practice testimony in the Second Department.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.