Surgeons often perform multiple procedures per week, and in many instances, they cannot recall specific surgeries or what techniques or methods they employed during them. Thus, if a patient suffers harm during surgery, the doctor may not have independent knowledge of his or her conduct during the surgery, as required to demonstrate compliance with the standard of care. In some instances, though, a doctor accused of medical malpractice may rely on habit testimony to avoid liability, but such testimony is only permissible in limited circumstances. The admission of habit testimony was the topic of a recent New York ruling in a matter arising out of surgical malpractice. If you were harmed during a surgical procedure, you might be owed compensation, and it is advisable to speak to a knowledgeable Syracuse surgical malpractice attorney.
The Plaintiff’s Harm and Subsequent Claims
Allegedly, the defendant performed a LAP-Band procedure on the plaintiff. The plaintiff suffered a perforated bowel during the procedure, which was not discovered until days later, when she was recovering in the hospital. She then underwent a second procedure to repair the perforation. The plaintiff filed a medical malpractice lawsuit against the defendant, arguing that his failure to prevent and identify the bowel perforation during the initial procedure constituted medical negligence. After discovery closed, the defendant filed a motion for summary judgment, arguing that he did not depart from the applicable standard of care. The trial court granted the motion, and the plaintiff appealed.
Habit Testimony in Medical Malpractice Cases
In support of his motion for summary judgment, the defendant submitted an affidavit from a medical expert that opined the defendant did not deviate from the standard. The court noted, however, that the expert’s opinion relied largely on improper evidence.
The court explained that an expert’s opinion must be based on information the expert personally knows or information in the record or hearsay testimony, which is acceptable as long as it is deemed reliable in performing a professional opinion in the relevant community. In the subject case, the only evidence as to whether the defendant complied with the procedure was the defendant’s own testimony regarding his customs during surgery.
The court explained that while habit testimony is admissible in certain circumstances, a foundation must be laid for such evidence to be properly considered as a basis for granting a motion for summary judgment. While evidence of conduct on other occasions is generally irrelevant, evidence of habit can be admitted to show that someone acted in compliance with that habit on a certain occasion.
A person seeking to introduce habit evidence must demonstrate a repetitive and deliberate practice. Here, the court found that the defendant failed to properly lay the foundation for the admission of habit testimony. Thus, the court vacated the trial court order granting summary judgment in favor of the defendant.
Meet with an Experienced Syracuse Attorney
Surgeons must take measures to prevent patients from suffering harm during procedures, but they often fail to do so, resulting in serious injuries. If you sustained damages because of surgical malpractice, it is prudent to meet with an attorney to assess whether you may be able to pursue claims for damages. The experienced attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers are proficient at helping parties injured by medical malpractice seek redress for their losses, and we will work tirelessly on your behalf. We can be contacted at 315-479-9000 or via the online form to set up a meeting.