Second Department Remands Medical Malpractice Case Decided on Evidence of Habit

Last month, the Appellate Division Second Department overturned the judgment of a lower court in which a jury found a doctor not to be liable in a medical malpractice action. The Appellate Division reversed the entry of the judgment after finding that the lower court made an improper determination to allow evidence of the doctor’s custom and practice evidence.

The case was brought after the plaintiff presented to the defendant, Edward M. Timmins, for the treatment of an incisional hernia.  In May of 2005, Dr. Timmins attempted to repair the hernia by suturing a Kugel Composix mesh patch against the plaintiff’s abdominal wall.  After the procedure, the plaintiff allegedly began to experience severe pain.  It was later discovered that a portion of the patch was displaced and hanging down from the plaintiff’s abdominal wall. The plaintiff then commenced a medical malpractice action against the doctor arguing that the plaintiff failed to properly suture the mesh patch to the injured plaintiff’s abdominal wall.

At his deposition, the doctor testified that he had no independent recollection of performing the injured plaintiff’s surgery.  Additionally, the operative report prepared by the doctor failed to indicate how many sutures the defendant used to secure the mesh patch, or even where the sutures were placed.  At trial, the defendant sought to introduce evidence of his custom and practice related to performing incisional hernia repairs using the Kugel Composix mesh patch.  The plaintiff moved in limine to preclude that testimony.  The Supreme Court initially granted the motion to preclude. After the plaintiffs presented their case, the defendant made an offer of proof regarding his custom and practice for placing sutures when using mesh patches.  Contrary to their earlier decision, the Supreme Court admitted the defendant’s testimony for suturing mesh patches as evidence of the defendant’s custom and practice.  After the trial, the jury rendered a verdict in favor of the defendant.  The Supreme Court entered a judgment in favor of the defendant and dismissed the malpractice complaint insofar as asserted against him.  The plaintiff appealed.

The panel of Second Department justices first analyzed prior case law for the use of custom and practice evidence in malpractice cases.  The panel found that a party can rely on custom and practice evidence “to fill in evidentiary gaps ‘where the proof demonstrates a deliberate and repetitive practice by a person in complete control of the circumstances’” (Galetta v Galetta, 21 NY3d 186, 197, quoting Rivera v Anilesh, 8 NY3d at 634; see Halloran v Virginia Chems., 41 NY2d 386, 391-392).  They went on to explain that on the contrary, evidence of “‘conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances’” is not admissible as custom and practice evidence (Rivera v Anilesh, 8 NY3d at 634, quoting Halloran v Virginia Chems., 41 NY2d at 389).

In the case at bar, the Appellate Division opined that the Supreme Court should not have admitted the defendant’s testimony as practice and evidence because the evidence did not demonstrate a deliberate and repetitive practice by a person in complete control of the circumstances.  When making his offer of proof, the plaintiff admitted that his procedure was to place sutures two to three centimeters apart around the edge of the mesh patch.  However, he also admitted that if the gaps appeared to be too large, he would place additional sutures.  The situation for the spacing of the sutures would depend on the contour of the patient’s abdominal wall.  The largest difference came in whether the patient was thin or obese. Thus, the placement of the sutures depended on the surrounding circumstances that were not in the control of the defendant.

In concluding, the Appellate Division justices opined that the Supreme Court’s error was not harmless as it bore upon the issue of whether the defendant negligently performed the injured plaintiff’s hernia repair.  This was the ultimate issue to be decided by the jury.  Accordingly, the panel of justices reversed the judgment and remanded the case to the Supreme Court of Suffolk County for a new trial.

To read a full copy of the decision, click here.

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