Prior Acts as Evidence in a Medical Malpractice Case

By Medical Justice | May 3, 2021


When the defense in the Derek Chauvin trial was permitted to introduce a video of George Floyd being arrested in 2019 (a year before he lost his life during a subsequent arrest) many doctors were confused. Physicians who have experienced the angst of being sued are generally told by their defense counsel that a basic rule in a medical malpractice action is what you did with another patient cannot serve as evidence in a current case.

They are actually correct about that as a threshold matter. As a general rule, cases are tried on only their own facts.

This is particularly suited to medical malpractice actions because the issue is whether the defendant adhered to the standard of care. The standard of care may vary with particular circumstances. Each patient and each case is different. It is therefore proper to limit the evidence presented to the actual events of the case.

Preventing a plaintiff from introducing unrelated cases more often actually serves as a shield against a physician defendant. The plaintiff is being prevented from muddying the doctor with irrelevant information in front of the jury. Such material is considered “more prejudicial than probative”.

On the other hand, that same approach prevents a doctor whose past care was excellent from showing examples of that excellent past care. If there was a parallel aphorism it would be such material is considered “more puffery than probative”.

There actually are limited roles for evidence of prior conduct in a medical malpractice case, though.

The first is when that prior conduct establishes a pattern with the current case.

The use of the video in the Chauvin case referenced above goes to that. The video was of a different arrest by different officers but there was commonality in Floyd’s conduct, including swallowing pills to prevent their detection and panicking and calling for his mother. The video was cropped to just the points of similarity to make the case for a pattern.

In the medical malpractice setting the issue would be whether the cases were so similar that it would be fair to consider the physician defendant’s actions in one case for the other.

Cutting the ureter and then failing to repair it in two prior surgeries could fairly show a pattern if the claimed current harm was cutting the ureter and failing to repair it. However, cutting the common bile duct and failing to repair it in two prior surgeries would not be considered a pattern in that same ureter case. Even though the cases have the commonalities of cutting a structure and not repairing it, the structures are different and their surrounding anatomy is as well.

Conduct from outside the case being litigated must also be substantially similar. This prevents showing the jury a film of prior acts that was edited specifically for the trial.

In a case that involved laceration of the aorta during a valve replacement, the trial court allowed the defense to show the jury a video of the defendant doctor doing the same procedure flawlessly on a different patient six years later. The defense claimed that the video was presented solely to show the jury how the procedure is done. There was a defense verdict and the plaintiff appealed. The appellate Court reversed and ruled that using the video was so improper that a new trial was warranted. The Court specifically noted not just that the circumstances of the cases were different but that the video had been specifically edited for the litigation to heighten its positive aspects.

Another type of evidence outside the case being litigated that may be admitted to refute a malpractice claim is habit/custom and practice.

This comes up when the defendant’s doctor cannot specifically remember the events of the case but wants to testify that he must have done a necessary thing because he customarily always does it.

An example would be a plaintiff suing for a skin infection after venipuncture. The plaintiff is claiming that the procedure was done in an unhygienic way and the doctor cannot recall the individual case. The doctor would want to testify that he always wears gloves and always cleanses the area with alcohol before inserting the needle – so he must have done so in this case as well.

Habit/custom and practice evidence may be permitted subject to two important limitations.

The first requirement is that the conduct must really be a habit or set custom and practice. As a court in New York wrote, “Evidence of habit or regular usage…involves more than…conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances; it involves a repetitive pattern of conduct and therefore predictable and predictive conduct.”

The second requirement is that it must be conduct that the defendant alone controlled. If independent instrumentalities or other participants are involved then the defendant cannot cite it.

Three dental malpractice cases demonstrate how these principles play out.

In a case alleging lack of informed consent, a dentist was allowed to cite his 19-year practice of always advising patients that permanent numbness could follow a wisdom tooth extraction because such a recitation was seen as basically a repeated business action and one solely under his control.

However, in another case, a maxillofacial surgeon was not allowed to introduce evidence of how he routinely did extractions with his assistant because the procedures were performed on unique patients and another practitioner was involved.

The point is not that one act is ministerial and one is therapeutic. It is that one habit claim was about conduct that was repetitive and solo while the other was about conduct that varied and not solo. In another case, therefore, the routine administration of anesthesia before an extraction was considered “mundane” and the sort of conduct that “habit” could be ascribed even though it was an invasive action.

Of course, a doctor can certainly testify on direct examination that they are very experienced in a type of care, with good results. What they cannot do is claim that as evidence that their care was equally good in the case they are being sued about.

In summary: The general rule is that evidence from outside cases may not come into a medical malpractice case but limited exceptions are made when a pattern is established or when the claim is regarding habit/custom and practice.

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