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SURGEON, WHO HAD NO MEMORY OF PLAINTIFF’S PROCEDURE, SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY ABOUT HIS USUAL CUSTOM AND PRACTICE IN PERFORMING A HERNIA REPAIR, DEFENSE JUDGMENT REVERSED IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing the defense verdict in a medical malpractice case, determined the trial court should not have allowed the defendant doctor, who had no independent memory of the hernia surgery he performed on plaintiff, to testify about his usual custom and practice, or habit. The surgery involved placement of a mesh patch on the abdominal wall. In this case a portion of the patch had come off the wall and adhered to internal organs:

“Custom and practice evidence draws its probative value from the repetition and unvarying uniformity of the procedure involved as it depends on the inference that a person who regularly follows a strict routine in relation to a particular repetitive practice is likely to have followed that same strict routine at a specific date or time relevant to the litigation” … . To justify the introduction of habit evidence, “a party must be able to show on voir dire, to the satisfaction of the court, that the party expects to prove a sufficient number of instances of the conduct in question” … . …

Although habit evidence may be admissible in a medical malpractice action where the defendant physician makes the requisite showing, here, the evidence did not demonstrate that the defendant’s suturing of the Kugel Composix mesh patch represented a deliberate and repetitive practice by a person in complete control of the circumstances … . …

Although the defendant testified that he had performed hundreds of hernia repairs using mesh patches, he could not remember how many times he had used the Kugel Composix mesh patch before he performed the injured plaintiff’s surgery. He testified at his deposition that he had used the Kugel Composix mesh patch at least “a couple times” before he performed the injured plaintiff’s procedure. Although the defendant contends that the procedure for suturing the Kugel Composix mesh patch was the same as for other mesh patches, the Kugel Composix mesh patch had features that were different from other mesh patches, including a “pocket” intended to protect the intestines. Martin v Timmins, 2019 NY Slip Op 07391. Second Dept 10-16-19

 

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