What Medical Providers should know about "Custom and Habit" Testimony

"If it wasn't charted, it didn't happen." Most medical providers have heard the adage, but is it true? Due to the realities of practicing medicine, health care providers are occasionally unable to document each and every aspect of their care within the medical record. What's more, a medical provider's recollection of a given patient's care can fade by the time a lawsuit is filed. So how might a nurse, mid-level, or doctor handle an aggressive Plaintiff's attorney who questions how, in the absence of documentation and recollection, a provider can nevertheless testify that a certain type of care was provided? Some providers can rely on their "custom and habit" to explain how they treat similar patients under a specific set of circumstances. In other situations, like Szekeres v. Mary T. Riggs, however, "custom and habit" testimony can be inadmissible.

In Szekeres, a 69-year-old patient—who had a history of hypertension, diabetes, high cholesterol, peripheral vascular disease, prior vascular surgery, and smoking—underwent surgical treatment from the defendant, a GYN surgeon, for a uterine prolapse, which resulted in a stroke and her eventual death. One of the key issues in the case was whether the GYN surgeon should have referred the decedent for a pre-operative clearance by a cardiologist. The GYN surgeon testified that she phoned the decedent's referring physician, her primary care provider, and advised that surgery would be performed. The primary care provider did not suggest a pre-surgical clearance by a specialist during that call, according to the GYN surgeon's testimony. While the primary care physician did not recall this phone conversation, she did testify that her custom and habit was to obtain pre-operative clearances for her patients with multiple comorbid conditions.

Physician conversing with her patientDuring trial, Plaintiff sought to introduce the primary care physician's "custom and habit" testimony regarding pre-operative clearances. Plaintiff contended that her "custom and habit" of referring patients for a cardiovascular evaluation was admissible impeachment of the GYN surgeon's testimony that a phone call took place. In other words, Plaintiff argued that the GYN surgeon misrepresented having called the primary care physician pre-operatively because, if she had, the primary would have referred the patient for a surgical clearance according to her custom and habit. The trial court rejected Plaintiff's argument and barred the primary care provider's testimony.

The Appellate Court upheld the trial court's ruling and noted that the party seeking to admit custom and practice testimony must show conduct that is "semiautomatic, invariably regular and not merely a tendency to act in a given manner." Here, the primary care physician testified that she "might" and "probably would have" referred the patient for pre-surgical clearance, because "usually" that is her standard of care. The Szekeres ruling demonstrates that equivocal testimony which does not evidence something beyond mere tendency to act is insufficient to establish admissible "custom and habit" testimony.

Key Takeaways:

  • "Custom and habit" testimony is admissible in a medical malpractice case
  • "Custom and habit" testimony which is equivocal and uncertain is subject to being barred
  • Testimony about a mere tendency to act is insufficient to establish admissible "custom and habit" evidence
  • Providers seeking to rely on their "custom and habit" should understand that such is defined as "semiautomatic" and "invariably regular" practices
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