By Daniel L. Freidlin, Esq.
Most patients understand that no surgeon can guarantee a perfect outcome and that undergoing surgery comes with the potential for risks and complications. This, however, does not stop them from seeking out an attorney when the complication occurs to them.
A common theme in the defense of a surgeon whose patient sustains an injury during surgery is the “known complication” defense. In other words, the patient knew and accepted the risk prior to surgery. Understanding this, the lawyer for the plaintiff often chooses to focus their case on whether the defendant physician took the necessary steps to not only prevent injury but also detect the injury intraoperatively.
Depending on the applicable statute of limitations, a plaintiff can initiate these lawsuits years later, when the surgeon will not specifically recall the details of the surgical procedure at issue. Thus, the surgeon will often rely on the operative report to support the defense that he or she took the appropriate steps intraoperatively to mitigate the risk of injury. Unfortunately, many times, physicians will not document routine steps taken intraoperatively, even if those steps are critical to minimizing injury to the patient. Often, surgeons feel that because these steps are routine and occur during every surgery, they do not have to document them. Without supporting documentation, however, the plaintiff’s lawyer will challenge the defendant physician as to how they can be certain that they did not take shortcuts during this surgery. The response to this has historically been to rely on “custom and practice” to support the position that the critical steps of surgery were performed despite a lack of documentation or recollection.
“Custom and Practice”
“Custom and practice” is analogous to habit or routine, i.e., I always wear a blue tie on Tuesdays; therefore, I know I wore a blue tie on Tuesday, Feb. 2, 2010, even though I do not specifically remember doing so. Generally, New York trial courts have allowed physicians to rely on “custom and practice” as habit evidence to support an inference that they acted the same way in the case at issue. However, New York appellate courts have recently started to limit a defendant physician’s ability to rely on this type of evidence to establish what the physician did in the specific situation at issue in the case.
In recent cases, the appellate courts held that habit evidence is not admissible unless the surgical step was so routine that it did not vary from patient to patient. Thus, for a physician to rely on custom and practice evidence to support the defense, it must be “routine, without variation from patient to patient” (Guido, 190 A.D.3d at 54).
These recent cases demonstrate that the courts are limiting the ability to rely on habit evidence in medical malpractice cases. This underscores the importance of documenting the key steps taken during a surgery to limit surgical complications from occurring. It is not enough for a defendant physician to testify that he or she performs hundreds of the same procedures; the physician must testify that the procedure does not vary from patient to patient, and is routinely performed in the same manner in every patient. Should the procedure not warrant such testimony — if it does vary from patient to patient — then it is vital that the physician prepare a detailed operative report documenting what transpired during a surgery. While it may be burdensome to dictate all steps taken intraoperatively to mitigate the operative risk to the patient, it is better than the alternative of not being able to defend the care rendered if a lawsuit ensues.
Partner Daniel L. Freidlin is an attorney at Martin Clearwater & Bell LLP, where he focuses his practice on the defense of medical malpractice matters. For more information, visit mcblaw.com.
Source: MD News February 2022, Long Island Edition