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Define That Term #222

Is a Dentist's Testimony Regarding Routine Administration of an Anesthetic Admissible as Habit Evidence in a Malpractice Trial?

I've always enjoyed evidentiary issues and for that reason was excited to read a recent opinion by the New York Court of Appeals regarding the admission of habit evidence in a dental malpractice action.

In Rivera v Anilesh, 2007 NY Slip Op 05134, the plaintiff sued a number of people, including her dentist, alleging that a severe infection in her jaw originated with malpractice committed by her dentist while injecting a second round of anesthesia during the course of removing the plaintiff's tooth.

The defendant dentist moved for summary judgment, alleging that she had no recollection of the specific procedure at issue.  As such, she relied upon her customary practice to establish that the treatment rendered to the plaintiff on the date of the alleged malpractice did not differ from her ordinary methods.

(She) state(d) that the administration of this type of injection was a "routine procedure[]" that she did "every day" to "at least three to four to five" patients and that she had been practicing as a dentist since 1982. Dr. Anilesh further explained that a second injection of anesthesia was required in 15% to 20% of her cases. She provided a step-by-step description of the procedure she used to give injections to her patients and claimed that, when a second injection was necessary, she administered it at the same site as the first injection. Dr. Anilesh noted that if a patient complained of unusual pain or any other unexpected events occurred during treatment, she would make a notation in the patient's medical chart but that no such note existed for Rivera. Dr. Anilesh's expert opined that Dr. Anilesh's treatment of Rivera was within the applicable standard of care in dentistry.

The Court explained the basis for the admission of habit evidence in New York:

"(E)vidence of habit has, since the days of the common-law reports, generally been admissible to prove conformity on specified occasions" because "one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again." The applicability of this doctrine is limited to cases where the proof demonstrates "a deliberate and repetitive practice" by a person "in complete control of the circumstances" (id. at 392) as opposed to "conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances" (id. at 389). If these conditions are satisfied, "a party should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence . . . on a particular occasion"...

The Court then noted that the issue of habit evidence had been considered by it on only a few occasions, and never in a medical or dental malpractice context.  The Court then concluded that the evidence was properly admitted in this case:

(T)he record here supports the admissibility of Dr. Anilesh's routine procedure for administering injections of anesthesia under the standard articulated in Halloran in light of the frequency that this technique was used in Dr. Anilesh's dental practice and the nature of the routine conduct...there is no evidence suggesting that Dr. Anilesh's pre-extraction injection procedure would vary from patient to patient depending on the particular medical circumstances or physical condition of the patient. This record therefore contains "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"...

While I agree with the Court's decision to an extent, I am uncomfortable with the application of habit evidence under the facts of this case.  It seems to me that this holding essentially encourages health care providers who frequently perform routine procedures to avoid documenting anything that occurs during a procedure that is somewhat out of the ordinary.  That way, when called upon to testify regarding a frequently performed procedure, s/he can allege an inability to recall the specific procedure and then assert that the procedure in question must have been typical since the medical record indicates that nothing unusual occurred. 

In a way, this decision seems to sanction convenient cases of amnesia when the underlying "forgotten" facts are the very heart of the malpractice claim.  But, then again, I suppose it's ultimately within the province of the fact-finder to determine whether the alleged case of amnesia is actually believable. 


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Howard Citron

Recently, the Florida Fifth District Court of Appeal held that a hospital's policy of using two nurses to administer medication was admissible as habit evidence under the Florida Evidence Code although the subject nurse had no independent personal recollection of the patient and the specific administration of the drug in the case. The case is Shands Teaching Hospital v. Dunn.

Stephen Godfrey

Great post,

An enjoyable read!


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