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Court Discusses Custom and Practice Evidence in New York Surgical Malpractice Cases

In surgical malpractice cases, evidence regarding what actions the defendant surgeon took before, during, and after the surgery is often offered by the plaintiff to prove liability or by the defendant in support of the argument that there was no deviation from the standard of care. Typically, the defendant’s acts are established via records or either party’s recollection of events. Recently, a New York appellate court analyzed whether a defendant surgeon can testify regarding what he or she did during a procedure based on his or her habit rather than actual knowledge. If you were harmed by a surgical procedure, it is advisable to speak with a diligent Rochester surgical malpractice attorney regarding what damages you may be owed.

Factual Background of the Case

It is alleged that the plaintiff consulted the defendant for treatment of an incisional hernia. The defendant attempted a surgical repair of the hernia, during which he sutured a mesh patch to the plaintiff’s abdominal wall. The patch had two sides, one of which was rough and intended to be placed against the abdominal wall, and the other of which was smooth and meant to protect the internal organs.

Reportedly, following the surgery, the plaintiff developed severe pain. It was later determined that the patch had been inserted backward, and the rough side had adhered to the plaintiff’s internal organs. The plaintiff sued the defendant, arguing that he deviated from the accepted standard of care by improperly suturing the patch to her abdominal wall. Prior to trial, the plaintiff filed a motion to prohibit the defendant from testifying at trial regarding his custom and practice in performing hernia repairs. The court granted the motion, but the plaintiff was permitted to testify regarding his usual practices regardless. The jury found in favor of the defendant, and the plaintiff appealed.

Custom and Practice Evidence

Under New York law, a party can only offer evidence of his or her practice and custom to fill in gaps, where there is proof of a repetitive and deliberate practice by a person who is entirely in control of the circumstances. Custom and practice evidence, however, is typically inadmissible to show that a party engaged in such behavior on the date in question. Further, conduct that is likely to vary depending on the circumstances is not admissible as evidence of custom and practice.

To be permitted to introduce custom and practice evidence, a party must be able to provide examples of a sufficient number of prior occasions where he or she engaged in the conduct in question. In the subject case, the court found that the defendant did not demonstrate a uniform procedure for performing hernia surgeries as required to demonstrate he engaged in repetitive and deliberate practice. Thus, the court reversed the trial court ruling and remitted the case for a new trial.

Consult a Capable Rochester Surgical Malpractice Attorney

If you suffered an injury or illness because of your physician’s negligent surgical practices, it is wise to consult a capable Rochester surgical malpractice attorney regarding your harm and what claims you may be able to pursue. The trusted medical malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers have ample experience handling malpractice cases in the New York courts and the skills needed to help you seek a favorable result. You can contact us at 585-653-7343 or via our online form to schedule a meeting.

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