News: An appellate court ordered a new trial in a medical malpractice case where a physician allegedly negligently performed a patient’s hernia repair surgery. The court found the physician had been improperly allowed to testify based on his course of habit when he could not recall performing the specific procedure. The patient alleged that during the procedure, the physician stitched a piece of mesh incorrectly on the patient’s abdominal wall. Following the procedure, the patient suffered severe pain and intestinal injuries.

The appellate court ruled that evidence of habit is admissible only after a party makes a showing that he or she follows a strict routine for a repetitive practice, and is likely to have followed that same strict routine for the conduct in question. In this case, the court found the doctor’s testimony based on habit was improper, and ordered a new trial.

Background: In 2005, a patient was under a physician’s care for treatment of an incisional hernia. The physician attempted to surgically repair the hernia by using a Composix Kugel mesh patch, which is designed with a rough and a smooth side. The rough side is applied to the abdominal wall, allowing the tissue of the abdominal wall to grow into the patch. The smooth side is designed so that the patient’s organs do not stick to the patch. As a distinctive feature, the Composix Kugel includes a pocket to protect the intestines.

During the procedure, the physician sutured the mesh patch against the patient’s abdominal wall; however, shortly after the surgery, the patient complained of severe abdominal pain. It was discovered that part of the mesh patch was hanging from the patient’s abdominal wall with the rough side facing the patient’s internal organs. While the rough side of the patch should have been facing the patient’s abdominal wall, the displaced portion had instead adhered to the patient’s intestines and omentum.

The patient and her husband sued for malpractice, alleging the physician failed to satisfy the appropriate standard of care by improperly suturing the mesh patch. During the deposition, the physician claimed that he did not recall performing the surgery on this patient. Furthermore, the operative report the physician contemporaneously prepared did not contain a detailed account on the number or placement of the sutures that had been used to secure the patch.

Before the trial, the plaintiffs sought to preclude the physician from testifying on the manner in which he normally performs hernia repairs using the Composix Kugel patch. The trial court initially ruled in favor of the plaintiffs, but subsequently permitted the physician to testify how he habitually placed sutures on patches during hernia repair surgeries. However, the appellate court found that the trial court erred in admitting the physician’s testimony. The appellate court explained the trial court’s error was not harmless because it affected an essential issue. The court reversed the judgment, and the matter was sent back for a new trial.

What this means to you: This case raises an interesting legal issue that may be important and applicable to medical care providers’ defense of medical malpractice actions. Since litigation often arises years after the underlying services are provided, the care providers may no longer remember specific details for one patient who received services years ago. Under specific circumstances, courts permit individuals to testify about their courses of conduct when such courses rise to the level of “habit.” Jurors may consider this testimony of habit to evaluate whether the care providers complied with the applicable standard of care. If a physician has performed one specific surgery 1,000 times, and each and every time the physician follows a set order of operations, this testimony may sway a jury to determine that the physician performed the same course of actions in this case, even though he or she may not remember it years later.

The fundamental question analyzed by the court of appeals regarded whether the defendant physician should be permitted to rely on evidence of custom and practice in his defense when he lacked specific knowledge as to his actions in one case. In other words, whether the physician should have been allowed to testify as to his habitual practice of suturing mesh patches during hernia repair surgeries, and if such testimony would be admissible as habit evidence. Generally, the court noted that evidence of habit is “admissible to allow the inference of the persistence of the habit” on a given occasion. However, if conduct varies from time to time, evidence of such conduct, regardless of frequency, may not be admitted as evidence of custom or practice.

In this case, the physician testified that when performing a hernia repair with a Composix Kugel mesh patch, the procedure enters through the pocket and places the sutures two to three centimeters apart circumferentially along the outside of the patch. Once that is completed, a final check is to be performed. If any gaps appear to be too large, additional sutures can close the gaps. The physician testified that the distance between the sutures depends on the contour of the specific patient’s abdominal wall, which in turn is determined by whether the patient’s size and weight. Additionally, the physician testified about the differences between performing this procedure using a Composix Kugel patch and a generic mesh patch, which does not include a pocket and requires sutures to be placed around the periphery of the mesh.

The appellate court explained that such testimony should not have been admitted as evidence of habit because, according to the physician’s own testimony, the conduct of placing sutures inherently varies from patient to patient as a result of the contour of the specific patient’s abdominal wall. Furthermore, the court noted how the physician was not able to recall the number of surgeries he had performed using the Composix Kugel patch, although he testified to having performed hundreds of hernia repairs using generic mesh patches.

In a medical malpractice case, the issue of whether any departure from the standard of care has occurred is essential. Expert testimony almost always is required to demonstrate how the defendant physician’s conduct did not meet the applicable standard. By contrast, the defendant physician often will testify how his or her conduct met the applicable standard of care. However, the physician testified during his deposition that he had no recollection of performing the surgery on this patient, and the operative report did not specify how many sutures had been placed, where they had been placed, and the distance between them. Because of the lack of recollection, the defendant wanted to testify as to his habit of suturing patches during such procedures. Had the physician completed a detailed operative report shortly after completing the procedure, he could have referenced the report as a source of the details needed to meet the habitual requirements.

A detailed operative report should include every aspect of the procedure, including adverse events such as organ perforation or excessive bleeding. A complete and accurate operative note can help a physician in the event of future litigation by demonstrating performance of standards of care and remedial actions taken, if necessary. As noted on appeal, such testimony should not have been admitted as evidence of habit because there were too many variables; thus, it was impossible for each procedure to be performed in the same way on every occasion. Consequently, the error in admitting the testimony of habit was not harmless because it affected the essential element of the case. As a result of this significant error, the appellate court stated that a new trial is required. While the defendant physician has another opportunity to defend himself, he will not be able to testify about his purported habit.


Decided on Oct. 16, 2019, in the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, Case Number 2016-02572 17469/07.