SECTION 8 MEDICAL MALPRACTICE & ELDER ABUSE

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1 SECTION 8 MEDICAL MALPRACTICE & ELDER ABUSE

2 DECONSTRUCTION OF EVIDENTIARY CLAIMS OF UNVARYING CUSTOM AND PRACTICE IN MEDICAL MALPRACTICE AND ELDER ABUSE LITIGATION I. What is the Problem? By Arlan A. Cohen, M.D., J.D. Uncorroborated, self-serving, and ultimately false assertions of custom and practice by defendants, asserted to prove defendant s conduct in the specific instance being litigated, are admissible even in the absence of any form of corroboration, in situations where disproof of these false assertions is difficult or impossible because of inaccessibility for the plaintiff to contrary, impeaching evidence. Further, specific instances of conduct belying the claim of custom and practice may be ruled inadmissible evidence of character, rather than admissible evidence of custom and practice. Inaccessibility to the means of concrete disproof of false testimony is the result of 1) respect for the privacy rights of other patients, whose records, if reviewed, would contradict the assertion of unvarying custom and practice 2) litigation rules arguably forbidding contact by the plaintiff s agents with the defendant to testthe truth of the assertion of unvarying custom and practice ; 3) the prohibitive expense of gathering voluminous enough information about the defendant s conduct with other patients to assert admissible evidence of habit, and 4) the evidentiary rules(evidence Code Sections 1105 and surrounding sections) that permit the use of uncorroborated assertions of unvarying custom and practice to be presented to the jury by the defendant as proof of defendant s conduct on a particular occasion, calling this admissible evidence of habit ; but may preclude the presentation of specific instances of conduct contrary to that assertion of custom and practice, also proffered for the purpose of proving defendant s conduct on the particular occasion, calling the latter inadmissible evidence of character. This although provable prior specific incidents of conduct are accepted by the Evidence Code as relevant to show either habit or character, and common sense and experience tell us that knowledge of either habit or character gives us relevant information about actual conduct on the date at issue in the litigation. II. Forms of Custom and Practice and their usual application: A. There are three general types of Custom and Practice asserted in litigation: -Industry Custom and Practice -Interpersonal Custom and Practice -Personal Custom and Practice 1. Industry custom and practice: defines the usual practice of participants in an industry or profession with compliance or noncompliance tending to prove or disprove negligence in the specific instance - what the reasonable person equipped with requisite knowledge would do under like circumstances is used in tort law as part of the definition of negligence, permitting compliance with industry practice to prove absence of negligence. CACI 501. Standard of Care for Health Care Professionals

3 [A/An] [insert type of medical practitioner] is negligent if [he/she] fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful [insert type of medical practitioners] would use in the same or similar circumstances. This level of skill, knowledge, and care is sometimes referred to as the standard of care. [You must determine the level of skill, knowledge, and care that other reasonably careful [insert type of medical practitioners] would use in the same or similar circumstances, based only on the testimony of the expert witnesses [including [name of defendant]] who have testified in this case.] -although the assertion of custom and practice in the profession may permissibly be made by the defendant testifying as the sole definer of community standards, without corroboration, the jury instruction on its face appears to contemplate some corroborating testimony by experts other than the defendant, and absence of independent experts at trial significantly disadvantages the defendant. - custom in the trade is used in business law to help apply the Uniform Commercial Code and to interpret the meaning of contracts 2. Interpersonal custom and practice: To show course of conduct within a specific relationship, as a means of determining the meaning of contracts or agreements, and determining compliance with the agreement The manner in which two contracting parties have repeatedly acted towards one another in multiple transactions, and the way in which they have interacted in the transaction that is the subject matter of the litigation is admissible to show the intent of the parties and the meaning of the language used in their agreement in the circumstance being litigated. 3. Personal Custom and Practice: To Prove what must have happened at a specific point in time when there is neither recollection nor documentation of the actual event: conceptually different from showing what the industry does, or what can be proven passed between litigants in the past: This is the use at issue in medical malpractice and elderabuse litigation: unsupported, uncorroborated, and often undisprovable statements by the defendant of what his conduct must have been, In practice, the asserted conduct is always perfect in every way. In my experience, such testimony is, as often as not, fabricated and false. B. Issues with/conflicts that arise regarding the first two more general uses of custom and practice 1. The industry itself may be negligent in its conduct, i.e. may act unreasonably, foreseeably putting people or property at risk of harm: compliance with the industry standard of care may itself be negligent conduct See: the classiclearned Hand opinions here: The T.J. Hooper (2d Cir. 1937) 60 F.2d 737, and United States v. Carroll Towing Co. 159 F.2d 169 (2d Cir. 1947): creating liability in negligence for an entire industry, by requiring a calculus of the 1) the probability of injury; 2) the gravity of the resulting injury; and 3) the burden of adequate precautions: ultimately requiring the owner of a towed barge to have an attendant on board despite the absence of such a practice in the industry, on penalty of being found comparatively negligent. See Justice Holmes observation that what ought to be done is fixed by a standard of reasonable prudence, whether it is usually complied with or not Texas v. Pacifif Ry.Co v. Behymer (1903) 189 U.S. 468, 470. See also Helling v. Carey (1974) 83 Wash. 2d 514, in which the Washington Supreme Court held that the ophthalmology profession in Washington was negligent in failing to assert the need for glaucoma testing in certain classes of patients, and compliance with an industry standard did not disprove negligence.

4 California analogue: whenever the phrase should have known is permitted as part of the definition of liability, rather than knew, and is applied industry wide: see, e.g. the DES cases, Sindell v. Abbott Laboratories, 26 Cal.3d 588 (1980), where manufacturers complying with industry standards in production and marketing were nonetheless liable for injuries, of which they should have known. In Barton v. Owen (1977) 71 Cal.App.3d 484, in reversing a defense verdict, the court commented that custom may be negligent. This possibility, i.e. of industry-wide negligence, as practice or as policy, is, however, virtually never considered during medical malpractice or elderabuse litigation; instead, the opposite tack is taken: compliance with industry-wide practice, the standard of care, is considered proof of the absence of negligence. See Osborne v. Irwin Memorial Blood Bank et al.(1992) 5 Cal.App.4 th 234, This is true despite clear evidence, from time to time,that an industry-wide practice is causing clear harm and has not been proven beneficial; or where initial belief in benefit has been disproven, though the harmful practice continues (e.g. frequent PSA examinations, surgery for benign elevations of serum calcium, VBAC deliveries)or despite evidence that industry neglect is creating foreseeable risks in asserting thatlikely beneficial treatments may permissibly be foregone in the absence of a form of proof that may never be forthcoming (e.g. immune globulin to protect the fetus of mothers exposed to chickenpox.) 2. The industry itself may itself implement conduct and may publish guidelines structuring what is considered the industry-wide standard of care in a manner that protects practitioners while putting the people whom tort law is designed to protect at risk; or may give advice to practitioners designed to avoid the production of proof of negligence, also at the risk of harming the patient ACOG: -30 minute rule: guidelines permitting 30 minutes between decision and incision in emergency C-section to still be within the standard of care; making it acceptable to begin operations minutes after brain damage to the fetus has already begun or been completed; only recently has this standard been revised -handling of Erb s palsy injuries in large babies: published argument that no precautions are necessary in the presence of risk factors for shoulder dystocia because it is impossible to know in which babies the risk or Erb s palsy will materialize: senseless argument that does not withstand scrutiny -VBAC as acceptable obstetrical care: No it isn t; yes it is (for about ten years); no it isn t again -Relabelling of a sign of fetal vulnerability that implies a need for immediate action, turning it into a matter of physician comfort:certain abnormal fetal heart monitor tracings were for decades labelled as showing fetal distress; this designation proved too probative to jurors; now the description of the tracings go to whether or not they are reassuring or nonreassuring: focus on the doctor, not the fetus -absence of dispositive proof of harm becomes proof of absence of risk: administration of immune globulin to woman exposed to chicken pox has not been dispositively proven to protect the fetus, because of scant data, though this protection makes pure physiologic sense, and the reason for the scantiness of data is the rarity of any thinking obstetrician withholding of the immune globulin: standards say the physician is not required to give immune globulin, as though proof of its lack of efficacy was in hand -advice about post hoc chart entries or foregoing tests that could show malfeasance : advice given at organization meetings on perinatal injury about the way in which charts filled out after such injury should be written, for medicolegal purposes, regardless of actual events. AANS: -Immediate discipline/expulsion of neurosurgeons who testify for the plaintiff, even justifiably, without a semblance of due process: unintended consequence benefitting plaintiffs: use of this discipline once the wanderer returns to the fold and testifies for the defense

5 3. Jury Instructions may permit the tortfeasor to deviate from industry custom and practice, and still avoid assertions of negligence, so long as an undefined group of undefined number or percentage of other practitioners act in this manner: See CACI below: bad things just happen and many ways to skin a cat instructions Success Not Required [A/An] [insert type of medical practitioner] is not necessarily negligent just because [his/her] efforts are unsuccessful or [he/she] makes an error that was reasonable under the circumstances. [A/An] [insert type ofmedical practitioner] is negligent only if [he/she] was not as skillful, knowledgeable, or careful as other reasonable [insert type of medical practitioners] would have been in similar circumstances Alternative Methods of Care [A/An] [insert type of medical practitioner] is not necessarily negligent just because [he/she] chooses one medically accepted method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. Sources and Authority A difference of medical opinion concerning the desirability of one particular medical procedure over another does not... establish that the determination to use one of the procedures was negligent. (Clemens v. Regents of Univ. of California (1970) 8 Cal.App.3d 1, 13 [87 Cal.Rptr. 108].) Medicine is not a field of absolutes. There is not ordinarily only one correct route to be followed at any given time. There is always the need for professional judgment as to what course of conduct would be most appropriate with regard to the patient s condition. (Barton v. Owen (1977) 71 Cal.App.3d 484, [139 Cal.Rptr. 494].) III. The Nature of the Evidentiary Problem for Medical Malpractice or Elder Abuse Plaintiffs A. Claims of unvarying custom and practice may be made by doctors without corroborating evidence of any kind, and these claims are admissible as Habit Evidence to prove conduct on a specific occasion, pursuant to Evid. Code 1105, the California analogue to Federal Rule 406 (Federal) Rule 406. Habit; Routine Practice Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. Cal. Evid. Code Habit or custom to prove specific behavior Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom. 1. Virtually all custom and practice described in defendants testimony in litigation is flawless, i.e. of the form:

6 I don t recall the specific incident, my records do not document my conduct, but I invariably perform not only in compliance with the standard of care, but I go beyond the standard of care. 2. However, In the litigation context, a very high percentage of assertions of unvarying custom and practice, when critical to the outcome of the litigation, and when proof is actually adduced turns out to be entirely or substantially false 3. Use of proven instances of conduct, even a number of them and even if representative of the defendant s practice, is NOT admissible to prove conduct on the specific occasion of your case -individual instances of conduct, if not repetitive to the point of becoming automatic are considered evidence of character not of habit and - character evidence unlike habit evidence may NOT be used to prove conduct on a specific occasion; and -although the plaintiff may in several ways get information about other specific acts contrary to the asserted custom and practice he/she is not likely to be given access to enough comprehensive information credibly to assert habit. B. The distinction between habit and character is vague at best and the operational definitions of the difference do not make it clear why one is predictive of actions on a particular date and time, and another is not; or why in this particular portion of Evidence Law, uncorroborated self-serving assertions are considered prima facie reliable Federal comment to Rule 406: Character and habit are close akin. Character is a generalized description of one's disposition, or of one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness. Habit, in modern usage, both lay and psychological, is more specific. It describes one's regular response to a repeated specific situation. If we speak of character for care, we think of the person's tendency to act prudently in all the varying situations of life, in business, family life, in handling automobiles and in walking across the street. A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic. C. Disproof of the claim of invariable custom and practice is blocked by several factors 1. Privacy rights of other patients bar discovery and review of the records which might disprove the claim of invariable custom and practice: these rights are asserted by the physician on behalf of the patient, though many patients would have no issue with answering questions about particular practices, as shown when such access is solicited in noncompulsory manners 2. Imprecision of the physician s records may make searches for analogous patient circumstances difficult or impossible, and potentially prohibitively expensive, even with judicial permission to gather such information D. Usual pro-doctor bias of jurors tends to give unwarranted credibility to physicians assertions of invariable custom and practice, particularly since the conduct asserted to be habitual always makes sense and comports with the standard of care

7 E. Usual anti-plaintiff bias makes even well-remembered eyewitness accounts, by a person in a unique position to recall events, as someone being treated less credible than accounts of invariable custom and practice from a physician whose recollection, often after thousands of intervening patient contacts is nil, and whose chart fails to document the asserted invariable custom and practice: see Comments to the Evidence Code and case law cited below. IV. Dimensions of the Problem: It s worse than you might think A. The historical two-step drift from the primacy of direct observation, and its dispositive evidentiary position vis-a-vis claims of custom and practice to custom and practice objections go to evidentiary weight rather than admissibility to. disdain for actual observation by a witness with motivation to recall, as contrasted with uncorroborated assertions of custom and practice 1. Until relatively recently, i.e. until the revision of Evidence Code section 1105 in 1967 the applicable evidentiary rule was: eyewitness evidence is dispositive, making contrary claims of invariable custom and practice inadmissible 2. Step One: The revision of Evidence Code 1105 eliminated the eyewitness rule and permitted uncorroborated custom and practice evidence to go to the jury, with anypotential unreliability of uncorroborated,potentially defective, self-serving assertions going to the weight rather than the admissibility of such evidence, though with no jury instruction about the manner in which such uncorroborated assertions might be evaluated by the jury, and no acknowledgement of the ease with which healthcare providers could have provided objective corroboration of habitual practice through the medical records or explicit through promulgation and enforcement of policies and procedures. 3. Step Two: Recent Case law and commentary, which seems to characterize custom and practice testimony as being intrinsically more reliable than eyewitness testimony: casting doubt on the accuracy and honesty of the patient s specific recollection, while casting no such doubt on assertions of unconfirmed assertions of invariable custom and practice: reversal of what was common sense for more than a century of California law a. Echoes of this attitude right up to recent US Supreme Court decisions: Justice Scalia s comment during the oral argument on the constitutionality of Arizona s voter rights law: sworn testimony on a piece of paper doesn t mean anything to prove voter eligibility. This comment was made shortly before Justice Scaliawas reminded that just such testimony is considered reliable enough to convict defendants in death penalty cases. b. See: the Comment to Evid. Code Section 1105, on why the eyewitness rule was abrogated: The no eyewitness limitation is undesirable. Eyewitnesses frequently are mistaken, and some are dishonest. The trier of fact should be entitled to weigh the habit evidence against the eyewitness testimony as well as all of the other evidence in the case. Hence, Section 1105 does not contain the no eyewitness limitation. [7 Cal.L.Rev.Comm. Reports 1 (1965)]. c. See: Typical, and often cited comments from the Dincau case: Dincau v. Tamayose (1982) 131 Cal.App.3d 780, from our own 2d District: case in which doctor s telephone instructions to a patient s mother, unrecalled and undocumented by the doctor, assertions of conduct by the physician denied by the mother, who had clear recollection of the conversation, are admitted because of an assertion of invariable custom and practice, put before the jury without arequested prior judicial determination that the doctor s assertion had merit, to prove both absence of negligence and possible dishonesty of the mother, and permitted to be buttressed by claims of actions taken after the asserted tortious conduct, with

8 dicta about what a grave disadvantage physicians would be at but for the admissibility of uncorroborated custom and practice, ignoring the availability of chart entries by the doctor to support his claim. 2. Admission of habit and custom evidence as to Doctor Tamayose and his staff. Appellants object to admission of evidence of the habit and custom of Doctor Tamayose and his staff as to their habitual response to telephone calls about minors' conditions, including the doctor's habit and instructions and usage thereon about (a) requesting that a child be brought in if its temperature is over 100 ; (b) giving of prescriptions over the telephone; and (c) contacting Doctor Tamayose (or his stand-in Doctor Tamura) if certain conditions were described by the caller. [12] Appellants urge that such testimony was inadmissible as falling under section 1104 which makes evidence of a trait of a person's character inadmissible to prove the quality of his conduct on a specified occasion. Although the line between section 1104 and section 1105 may sometimes be a thin one, the nature and quality of the evidence objected to here clearly fell under section 1105 which permits introduction of evidence of habit or custom to prove conduct on a specified occasion in conformity with the habit or custom. (Jefferson, Cal. Evidence Bench book (1972) 33.6; Witkin, Cal. Evidence (2d ed. 1966) , see Cal. cases cited thereon; and 2 Weinstein, Evidence (1981) par. 406[02].) [13]*794 Appellants object that the trial judge should have made a preliminary determination of the existence or nonexistence of the habit or custom under section 405.the trial court's failure to grant an in camera hearing would be harmless error, since the trial court correctly allowed such evidence of habit and custom to be introduced before the jury. [14] It is further asserted that habit and custom should not be used to establish lack of negligence. In California such evidence can be used to show due care on a particular occasion. (Witkin, Cal. Evidence (2d ed. 1966) 338; Romeo v. Jumbo Market (1967) 247 Cal.App.2d 817, 823, 56 Cal.Rptr. 26.). Evidence of custom may be introduced to show that it was unlikely that a defendant was negligent on a particular occasion. In the case at bar, if Doctor Tamayose and his staff habitually asked that an infant with a temperature of more than 100 be brought in for an examination, and did not prescribe over the telephone under such circumstances, this renders it less likely that Doctor Tamayose was negligent and more likely that he used care during the critical weekend.**864as an incidental effect, such habit evidence also tend to prove that it was less likely that the mother reported the telephone conversation correctly, and thus tends to be impeaching evidence against mother. But such incidental effects should not render habit evidence inadmissible. If we consider such habit evidence from the standpoint of section 352, the evidence is greatly relevant, and tends to help the jury in determining what actually happened over the weekend rather than confusing them. Let us carry appellants' argument to its farthest extent. Let us suppose that Ryan would wait the full period of time after the meningitis permitted by Code of Civil Procedure section and sue Doctor Tamayose or any other doctor; and to support his case would bring in the testimony of his mother, supposedly stating she talked to Doctor Tamayose (or any other doctor), who then supposedly stated to her I never see sick children over a weekend, no matter how sick they are, or how high may be their temperatures! What protection would any doctor have, years after an event, other than a vigorous denial that the event did or could have taken place, together with perhaps a lack of recollection of ever having talked to the mother? A rule of reason would demand, and the California Evidence Code provides, protection to such a doctor by allowing him to show the trier of fact that such a tale is contrary to his habit and custom, and that therefore he was not negligent at the time in question. (Wigmore, Evidence (3d ed. 1940) 98.) [Emphasis added} Note: there is no hint in this opinion of the potential for inaccuracy or dishonesty in the assertion of custom and practice, or of the multiple ways in which custom and practice could have been documented,

9 in the records at issue, or as noted below, in written, established practice guidelines, with documentation of regular compliance with those guidelines. d. Appellate panel comments in the Hinsen case: Hinson v. Clairemont Community Hospital et al (1990) 218 Cal.App.3d 1110: court presumes that any doctor who has finished his training must have the knowledge base required by the negligence jury instruction, all of which training is admissible for that purpose; yet his repeated expulsions from multiple residency programs for inadequate performance and performance of procedures for which he was unqualified, and his firing from later employment as a physician for dishonesty were inadmissible as mere character evidence. The relevant headnotes: Evidence that physician had been terminated from two residency programs, terminated from one job after only one day, and had his hospital staff privileges suspended went beyond proper standard of care evidence regarding his possession of requisite degree of knowledge and skill and instead went to his character; thus, such evidence was not admissible to prove that physician was negligent on particular occasion. Standard of care requirement that physician possess reasonable degree of knowledge and skill ordinarily possessed by other members of profession in similar circumstances references minimum or threshold qualifications that must be met, and is generally evidenced by physician's graduating from medical school, passing medical boards, and receiving certification to practice medicine; beyond showing that physician failed to complete his or her medical training or was denied certification to practice medicine, details of physician's medical education or training are not relevant to show breach of standard of care but rather are essentially inadmissible character evidence tending to show physician's character for skill, competence, or negligence As the court began its discussion: Hinson complains the following evidence was erroneously excluded: (1) Robbins's termination from the residency program at Stanford University after two years because of his inadequate performance; (2) Robbins's termination from the Indiana University residency program because he was trying to perform surgery he was not qualified or competent to perform, he *1117 was believed to be dishonest by the physician who headed the Indiana residency program (Dr. Brown) and because he refused to repeat his third year; (3) Robbins's termination from employment by the Kaiser Permanente Medical Group in San Diego after one day because Robbins had been dishonest in failing to include all of the residency programs he had attended on his application and because Kaiser had received negative comments on Robbins's performance from the department heads at the residency programs at Stanford, Indiana and Connecticut Universities, and the Kaiser facilities in northern California where Robbins previously had been employed; and (4) Robbins's suspension of staff privileges at Sharp Memorial Hospital because Robbins was performing unnecessary surgeries (including the same type of surgery involved here) and was endangering the lives of patients. Hinson argued the evidence was relevant to the issue of whether [Robbins had] the degree of learning and skill ordinarily possessed by reputable physicians. She argued Robbins's training and education was relevant under BAJI [6.00] because the degree of learning and skill ordinarily possessed by reputable physicians is one standard that the jury uses in order to determine the negligence issue. Hinson also argued the evidence was relevant to Robbins's veracity. The defendants moved to exclude the evidence before Hinson called Robbins as her first witness and sought to examine him as an adverse witness pursuant to Evidence Code section 776. FN3. As to the suspension of Robbins's privileges at Sharp Hospital, the trial court ruled the evidence was

10 inadmissible pursuant to *1118Evidence Code sections 352, 1101, subdivision (a) and 1104 FN6 and **507 noted potential hearsay problems. While making its ruling, the court pointed out more than once that it was ruling on the admissibility of the evidence during the examination of Robbins under Evidence Code section 776. FN7 V. Can we get into evidence specific instances of conduct contrary to the asserted habit of the doctor as evidence of character, which character then can be used to prove his conduct in our own specific case? Probably not, but the Evidence Code and commentary is not absolutely clear. Can we use it to impeach the credibility of the witness: not certain, but probably yes Manner of proof of character Except as otherwise provided by statute, any otherwise admissible evidence (including evidence in the form of an opinion, evidence of reputation, and evidence of specific instances of such person's conduct) is admissible to prove a person's character or a trait of his character Character trait for care or skill Except as provided in Sections 1102 and 1103, evidence of a trait of a person's character with respect to care or skill is inadmissible to prove the quality of his conduct on a specified occasion Evidence of character to prove conduct (a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109,[all related to criminal proceedings] evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness. Comment to 1101Evidence of misconduct to show fact other than character. Section 1101 does not prohibit the admission of evidence of misconduct when it is offered as evidence of some other fact in issue, such as motive, common scheme or plan, preparation, intent, knowledge, identity, or absence of mistake or accident Character evidence generally Evidence of traits of his character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness Specific instances of conduct Subject to Section 788, evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness. (788= evidence of prior felony conviction)

11 But: Evid. Code Section 780 Testimony; proof of truthfulness; considerations (i): Jury may consider the existence or nonexistence of any fact testified to by him in determining the credibility of a witness and (d) the extent of his opportunity to perceive any matter about which he testifies A. Bottom line issue: if we can somehow develop evidence of conduct by the defendant inconsistent with his assertion of unvarying custom and practice or habit : how can we make those specific other instances of conductadmissible to prove what the defendant did on the date in question? -we cannot prove habit to show conduct on the occasion we care about in litigation, because we lack access to sufficient information to meet the requirements of Section 1105 to credibly style our evidence admissible habit ; -we may not use specific instances of conduct that because of their intermittency do not rise to the level of habit directly to prove conduct on the occasion at issue -We may use specific instances of conduct to prove character or a trait of character (1100) -But we may NOT use character alone, including that proved by specific other instances of conduct to prove conduct on a specific occasion (1101(a)) -Nor may we use conduct on prior incidents to prove absence of skill or care on a specified occasion (1104) -But we may use character evidence, proven by these prior incidents, to show: motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident or to impeach credibility (1101 (b) and (c), and 780) B. Perplexing issue: if a doctor swears under oath to an unvarying custom and practice or habit which pursuant to Evidence Code Section 1105 may be admitted to show his conduct, otherwise unrecalled and undocumented, on a specific occasion: may evidence that the doctor s testimony about unvarying practice is false, case the form of evidence about other specific instances of conduct in like situations, be admitted: -to impeach the credibility of the physician -to show that the practice itself was not actually unvarying -to show that the physician s custom and practice was in fact different from what his testimony asserted -to show that the physician s actual custom and practice was in fact different from the industry standard, hence was negligent Do we just give up? No: suggest we take the perspective of Mr. Nivens below:

12 VI. My Suggestions: What has worked; Tools for Deconstruction of the Assertion of unvarying custom and practice ; possible tactics; suggested portions of opening statement and jury instruction A. Examples of What has Worked: California and elsewhere 1) Ophthalmology case: Judge granted motion for appointment of a plaintiff-financed special master reportable to the court, with results then judicially noticed and relayed to litigants, to review a number of charts to establish the presence or absence of the claimed custom and practice of nursing personnel following a specific in-hospital post-operative complication of eye surgery. This preserved the confidentiality of those records, through the sworn duty of the special master as an officer of the court. The review showed that the invariable analysis and treatment of a particular ophthalmological post-

13 operative symptom documented to be present in the plaintiff in fact rarely occurred at this facility after the specified complication. The case settled. 2) Urology-PSA case: judge-ordered production of the last 20 charts of patients falling within the area of the claimed custom and practice regarding the routine ordering and follow-up of abnormal PSAs, with all identifying patient information redacted, for examination by experts on both sides of the case. This showed that the invariable follow-up of abnormal PSAs over time in fact was ordered by the physician only sporadically, less than 20% of the time within the defendant s practice. This case settled. 3) Misconduct and injury during an in-hospital tilt-table test: court-ordered production of computer data from the defendant hospital, with all identifying patient information redacted, on all complications of a particular tilt-table testing laboratory during the prior year, with all diagnoses associated with the use of that laboratory made available to experts on both sides. Defense assertion: testing was invariably safe with no significant complications. Computer data showed that prior to the tilt-table testing of the plaintiff, a laboratory that had been testified to be complication-free and to invariably and honestly report complications in its marketing, had in fact been the site of multiple strokes, TIAs, or arrhythmias during this benign testing during the prior year. Case settled 4) Florida case of failure to warn of drug toxicity: defendant s assertion that the prescription of a particularly toxic antibiotic, capable of causing intrauterine fetal injuries, was invariably given only with warnings to the patient not to become pregnant during the antibiotic course, an assertion disputed by the plaintiff, was tested in newspaper advertisement asking if patients of a particular doctor of child-bearing age had ever been prescribed a particular drug by him and if so, what warnings, if any were given about avoiding pregnancy during treatment. Received: multiple volunteered responses of women trying to become pregnant when they were patients of the defendant physician, who were given the drug by this physician without warnings about the drug s potential teratogenic effects. Case settled. 5) Failure to require preventive measures to prevent infection and failure fully to review all of a fetal U/S: involving assertion that for women of child bearing age, the obstetrician and her staff invariably discussed in detail the need for a test for immunity from chicken pox and the need for a nonimmune prospective mother to be vaccinated against chicken pox before becoming pregnant. Three investigators, women of child-bearing age who wanted an ob checkup, had ob checkups in anticipation of pregnancy with the defendant and in only 1 of 3 was the subject of chicken pox vaccination mentioned. Case settled before use of this information. Also, proof that assertion of invariable custom and practice of fullreview of all images of fetal U/S personally by the perinatologist defendant was false by finding of massive, readily apparent abnormalities on the U/S in a portion of the U/S that clearly, by virtue of the obviousness and duration of the abnormal findings, had never been seen by the defendant. Case settled as a result of this finding. B. Tools/Weapons/Concessions/tactics for the Deconstruction of Claims of Custom and Practice/Habit 1. Obtain the testimonial assertion by the defendant that the conduct claimed to be habit is unvarying. This is normally not difficult to obtain; if the conduct is not unvarying it may not be habit pursuant to the Evidence Code and commentary; and even if it is still permitted to be called habit the variable nature of the conduct claimed leaves open the issue of what happened during the specific incident in question, exactly the issue the defendant wants to close. If the response to inquiry about invariability is it depends then most of the value of Evidence Code 1105 for the defendant dissolves. But if the conduct is asserted to be unvarying, then only a few provable instances of contrary conduct significantly impeaches the defendant and undermines the probative value of this testimony about actual conduct.

14 2. Obtain firm evidence of exactly how often the particular circumstance at issue in your case occurs in the physician s practice: hourly, daily, weekly, intermittently, once in a while: it may be that the physician lacks the foundation in frequency to claim 1105 habit in the first place. Also, in the process of pinning down how often the physician finds himself confronting the situation at issue in your case, you may determine how the physician has organized his records, so as to be able to find such charts and answer your question about frequency of occurrence. This information provides foundation for a later request of the Court to permit you to use that record system to find patients with substantially similar clinical findings, so as to find a method objectively to test the assertion of custom and practice. 3. Obtain a clear and detailed medical rationale for engaging in this unvarying custom and practice. If the custom and practice or habit clearly defines the standard of care, then later proof of conduct inconsistent with that practice is proof of failure to conform to the standard of care, i.e. of negligent conduct in general; if the jury accepts that the doctor failed to conform to that standard with the plaintiff as well, the finding of negligence applies to your case. 4. Obtain a concession that the more normal and objective methods of determining what happened on a specific occasion, like recollection and contemporaneous documentation, are unavailable to the defendant, because the chart is silent on point, and because the passage of time and the examination of hundreds or thousands of other patients at many, many office visits make it impossible for him to remember his contact with the plaintiff: ascertain his usual patient visit load, and estimate how many visits occurred between the date/visit in question and the time of the deposition 5. Obtain a concession that although for the plaintiff, the contact with the doctor was unique, and memorable because of the personal harm that was at issue for the patient, for the doctor the visit was one of thousands, with no special reason for recollection. If a busy physician sees patients/office day, and has 4 office days/week, and works 48 weeks/year, and if a year has passed before he is called to give recollection testimony : he has likely had more than 2,000 patient visits in the interim. This is one reason why medical records were invented. 6. Document details of the defendant s method of practice, scheduling, and office supervision that may be evidence that the asserted habit is not invariable, that actions consistent with the asserted custom are not required, or standards consistent with it are not enforced.is the unvarying practice asserted a practice that can be performed in the time normally allotted to new patients? To revisits? Does he have written policies and procedures for his office and practice that require adhering to the asserted custom and practice? If not are there verbal policies in force? How does he determine that they are being followed? What audits of his practice has he ever done? What type of coding of diagnoses or problems does he use in his practice: how does he get to specific diagnoses on his computer system? What exactly does he permit his receptionist to do, as regards taking histories or giving advice to patients? Same for his front and back office staff. 7. Find instances of likely or certain deviation from the asserted unvarying custom and practice: a. Show that such practices should be documented in the medical records of the plaintiff and in the records of similarly situated other patients if they had in fact occurred: but they are not (using where the Court permits, methods of getting to the records of other patients without compromising their privacy rights) b. Show that the asserted unvarying practices in fact did not occur, in your plaintiff or in other patients (using your own plaintiff s testimony, the testimony of other patient volunteers, the testimony of investigators, or undeniable evidence that the claimed action did not occur, by dint of outcomes that are inconsistent with the appropriate care asserted to be routine: see failure to review U/S, noted above, when the U/S abnormality is clear and obvious; or failure to act on clear laboratory or radiographic

15 abnormalities, or failure to respond to documented communications detailing the danger of continuing treatments causing complications.) c. Show that the practices asserted to be invariable are not addressed by any office policy or procedure, that no such policy or procedure is enforced, and/or that the time allotted to patients is inconsistent with the performance of the asserted unvarying examination or analysis (e.g. full new patient history, full physical exam, pelvic exam, writing or dictating the office note, PLUS advice about various vaccinations needed in women who may become pregnant all in five minutes) d. Look for computer records regarding the practice that will disprove either the frequency of the situation at issue, or the acts actually performed under these conditions. 8. Get the contradictions between reality and the asserted unvarying custom and practice into evidence, or at least on record, for impeachment, or to show motive, intent, lack of mistake, plan, etc. We are lawyers; be creative. Evid. Code Section 780 Testimony; proof of truthfulness; considerations (i): Jury may consider the existence or nonexistence of any fact testified to by him in determining the credibility of a witness and (d) the extent of his opportunity to perceive any matter about which he testifies 9. Move either for exclusion of what is claimed to be habit testimony because in fact is does not meet the foundational requirements for testimony that may be used to prove conduct on a specific occasion (absence of sufficient frequency of occurrence to have a habit as defined in the Code commentary: goes to admissibility; or untruthfulness of the assertion: likely goes to the weight) or 10. Use the contradiction between what the defendant has described as being conduct that defined the standard of care, i.e. his asserted custom and practice, and what he actually did in this case, to show that his conduct in this case in fact was negligent. 11. If there are enough incidents of conduct contrary to the asserted custom and practice, which defendant has testified defines the standard of care, or if these proven incidents can be argued to be a compellingly representative sample of the defendant s conduct, assert that the defendant has shown his true custom and practice, namely one that deviates from his initially asserted custom and practice, and that he has conceded that he habitually violates the standard of care See: Witkin Cal Evid. 5 th, 2012: PARTICULAR KINDS OF CIRCUMSTANTIAL EVIDENCE [ 72] Negligence. Habit evidence may also be used to prove lack of due care, i.e., negligence of the defendant or contributory negligence of the plaintiff 12. Finally, even it if appears that the doctor has accurately stated his custom and practice, it may be argued that in this specific instance, he violated that practice, as shown by the testimony of the plaintiff, confirmatory testimony of others, and the objective failure to act in accordance with the claimed custom and practice as shown by adverse but preventable outcome -Permissible use of the retrospectoscope not to determine if the choice of actions was negligent, but to show what likely did happen on the date at issue some claimed actions are simply inconsistent with the actual outcome in the case [NB: case in which the invariably reviewed U/S showed 20+ seconds of clear abnormality; case in which OR crew that invariably did an instrument and sponge count showed a large clamp retained in the chest; similar case with similar claim about abdominal instrument count.]

16

17 C. Potential Tactics: Opening Statement and Jury Instruction Opening Statement: You will hear from the defendant an assertion that although he cannot remember what happened on the date in question, given the thousands of other patients he has seen since then, and that although the medical record does not reflect what happened, he knows what he did because he has, he asserts, an unvarying habit or invariable custom and practice of behaving in a particular manner. But he will offer no actual proof that he has actually been in this situation often enough to have formed a habit; we will have to take his word for it. He will offer no documentation of such conduct in the medical records, documents over the content of which he and only he has complete control, and which he will admit he has been taught since the first year in medical school should be accurate and complete: again we will have to take his word for it. He will offer no evidence that he made such conduct part of any office procedure or policy, written or spoken, or required documented compliance with any such office procedure or policy. Once more, he will offer only his unsupported testimony. The plaintiff, by contrast, has not seen thousands of doctors since his visit with the defendant, and his experience with this doctor, you will hear, was unique and memorable, concerning the plaintiff s personal health and possibly his very life. [In addition, you will hear evidence that the invariable custom and practice to which the doctor will testify was not really so invariable : that in fact this practice was not carried out when he cared for other patients with conditions like that of the plaintiff] You will, members of the jury, need to determine just how much credibility to give to the doctor s unsupported, unbuttressed testimony about an event he does not remember and which, despite the opportunity and obligation to do so, he did not document, [which testimony describes what he called invariable habit though he did not act in accordance with that asserted habit when dealing with other patients]. Proffered Jury Instruction: Defendant has been permitted to testify to what happened on the occasion(s) in question based on an assertion of habit or custom and practice. You may evaluate the credibility of such testimony based on your view of the general credibility of this witness, as well as by the presence or absence of corroborating testimony, such as actual memory of what happened that day, what the doctor documented in the medical record describing this interaction with the plaintiff that day, whether or not the situation at issue has in fact arisen often enough for an automatic habitual response to have arisen in the doctor s practice, whether he has promulgated a policy or procedure in his practice to make sure this course of conduct is followed, and whether credible evidence disputing the invariable nature of the asserted practice, such as conduct at variance with that asserted invariable conduct has been presented by the plaintiff.

18 HANDLING THE ACTUAL MEDICAL MALPRACTICE CRISIS: MEDICAL ISSUES IN YOUR PI CASE By Steven A. Heimberg, M.D., J.D. Personal injury cases almost always involve medical issues. Preparation and forethought regarding these issues often will enable you to make your PI case even stronger. However, there are many traps for the unwary, particularly when the quality of the medical care is at issue. Virtually without exception, any injury case with substantial damages will become entangled with medical issues. There will always be issues of how to maximize the economic damages, usually dependent on numerous, sophisticated medical analyses. If medical malfeasance is even colorable, it will be necessary to protect the noneconomic damages from being decimated by: (1) MICRA; and (2) Proposition 51, which is (mis)interpreted in the Henry case and usually (mis)characterized by the defense. Of course, the PI defendants often will point to medical defendants or medical empty chairs to avoid blame altogether. At other times, you will be enticed to add medical wrongdoers to your case. You should generally quash these impulses to add medical defendants. It often behooves you to avoid having medical defendants, particularly if they are MICRA-qualifying medical defendants. However, it takes substantial prospective analysis and planning to avoid creating viable empty chairs, being forced into a MICRA situation unnecessarily, and to avoid medical causation arguments that may obviate totally the personal injury claim (e.g., as a superseding cause). At other times, however, the facts will be such that the case will fail unless it is primarily a medical malpractice case. This usually occurs when there is weak liability or weak damage availability against the PI defendants (e.g., an automobile accident with no insurance coverage for the PI defendant). Making these decisions early in your handling of the case is essential to avoiding litigation catastrophes. The best decisions require an ability to recognize the potential liability issues and having knowledge of how to protect and strengthen the personal injury liability aspects of the case as necessary and appropriate. It also requires knowledge of multiple areas of law to enable you to maximize and protect your case s damages. I. Liability Issues There are innumerable ways that health care providers become a part of a PI case. As to becoming potential defendants, there are two common scenarios. First, the PI defendant may attempt to blame a provider treating the plaintiff before the incident for a prior health condition. We recently had a case where a 40-year-old man with a preexisting heart condition had a cardiac arrest while playing basketball in a health fitness facility. As often occurs, the defense in that case pointed at the previously-treating cardiologist for inappropriately treating the heart condition. Second, and far more commonly, PI defendants seek to place blame on subsequent treating medical providers. Almost all instances of serious injury require medical care; whenever possible, the originalwrongdoing PI defendants will seek to attach blame to the subsequent treaters. The shrewd PI defense counsel often will claim that prior or subsequent medical care has broken the chain of causation. This is particularly true when the medical condition precedes the personal injury tort. It also occurs when, arguably, there is egregious care, which the PI defendants will seek to portray as a supervening cause.

19 It is in your and your client s best interest to avoid making claims against these prior or subsequent medical treaters. Shrewd PI defense attorneys may use a plaintiff s claims against these defendants, and even a plaintiff s Complaint that includes medical claims, to argue the extreme or obvious nature of the malpractice, using the Complaint s advocacy language to assert the case was sufficiently egregious to be a supervening cause. It will typically seem appealing to pursue claims against apparently wrongdoing medical practitioners. However, there are numerous advantages to refraining from doing so. Besides avoiding the harsh effects of MICRA and Prop 51, these advantages include: (1) avoiding multiple defense experts on liability and causation; (2) having greater ability to use the inculpated and more subsequent medical practitioners to undermine the PI defendants liability theories and support plaintiff s theories; and (3) having as your opponents less medically-sophisticated defense attorneys, and thereby more poorly prepared defense medical experts. The decision on whether to bring in medical defendants requires early strategic planning. Even if you forgo doing so, defense counsel may always cross-claim or merely point to the empty chair. Early decision making on your part not only will enable you to propound effective discovery to limit defense counsel s ability to lay blame on the medical providers but will also enable you to obtain more favorable testimony from the medical providers. II. Protecting and Strengthening Your Liability Case Against the PI Defendants There are numerous methodologies available to strengthen the liability case against PI defendants and to minimize the strength of the case against potential medical defendants. First, use the natural tendencies of prior and subsequent treaters to defend themselves to strengthen your case. There is little doubt you can persuade potential medical defendants whom you have not named to save face or cover their backsides while minimizing the wrongdoing and undermine causation regarding their own conduct. These treaters will help identify issues and already will be friendly with prior or more subsequent treaters. Such treaters are generally from the same institution or are in some way aligned with the caregivers at which the PI defendants are pointing. For example, a cardiologist that works primarily at a particular hospital will almost invariably be glad to help defend an emergency room doctor, ICU doctor, or nurses from the same institution. As a bonus, you will get the opportunity to see just how easy medical malpractice defense attorneys have it. Next, you can take advantage of the relative lack of sophistication, particularly medical sophistication, of the PI defense attorneys compared to med mal defense attorneys. You can further this advantage by consulting with experienced plaintiff med mal attorneys or even friendly med mal defense attorneys. They will be able to spot the issues for you, obtain superior medical experts, and likely be familiar with any opposing experts that the PI defendants eventually designate. They can enable you to prepare your own medical experts more effectively. More importantly, early on they can help you analyze the strengths and weaknesses of your medical case versus your personal injury case. This assistance can range from analyzing medical records to identifying the proper subsequent treaters and type of medical experts with whom you will need to consult. Furthermore, they can assist you in propounding discovery that will allow you to better prepare your rebuttals to the cross-claims/empty-chair allegations by the PI defendants or, alternatively, to support a summary judgment motion you can bring to have the case thrown out against the medical defendants. Additionally, they can help you convey complex medical issues to the jury.

20 III. Protecting and Enhancing Damages in a PI Case with Medical Malpractice Aspects A. Henry Issues Whether or not medical wrongdoers are actually named, if they are even remotely subject to liability claims, the PI defendants almost certainly will attempt to point in their direction. The primary reason for doing so, even against unnamed defendants, stems from the effects of Proposition 51 as interpreted by Henry v. Sup. Ct., 160 Cal.App.4th 440, 72 Cal. Rptr.3rd 806 (2008). According to the defense interpretation, this case stands for the propositions that: (1) fault will be allocated between the initial personal injury tortfeasor and the subsequent medical malpractice tortfeasor; and (2) noneconomic damages will be apportioned according to that allocation of fault. 1 So applied, Henry has two potentially devastating effects on your client s damages. First, this could be a serious reduction of the noneconomic damages by the percentage of fault attributable to the implicated health care providers. Second, that allocated amount will be zero to your client if the medical wrongdoers are not in the case, and reduced by MICRA to $250,000 if they are. For example, imagine a situation in which a jury awarded $5 million in noneconomic damages for a catastrophic, life-altering injury, such as quadriplegia. Further assume that the jury allocated 80 percent fault to a MICRA-qualifying medical defendant. In that situation, the damages would be reduced to onequarter of what the jury awarded, even if the medical defendants are in the case (less if they are not). The PI defendant would be responsible for only $1 million of the noneconomic damages (20% of the $5 million), and the $4 million for which the medical defendant was responsible would be cut to $250,000 by operation of law. See Civ. C Fortunately, the Henry holding and its application, and therefore its adverse effects, are far from clear. Although its superficial holding reiterates the requirement of Civil Code section that there be several rather than joint liability for noneconomic damages (meaning each defendant is liable for noneconomic damages only to the degree of that defendant s fault), Henry provides more questions than answers. The Henry holding seems mostly an evidentiary rule, allowing evidence of fault of the subsequent medical tortfeasor to be introduced. However, the entire concept of allocation of fault to the subsequent medical wrongdoer is based on a rarely existing distinction. Proper preparation should permit avoiding application of Henry, or at least will minimize its harm in most situations. The problem with the Henry analysis is that it is based on two constructs that are extremely dubious in the real world. First, the ruling speaks with a forked tongue. It simultaneously states there can be allocation of fault (and therefore damages) to the subsequent medical provider while recognizing the wellestablished law that clearly indicates 100 percent of the fault is attributable to the original tortfeasor so long as the chain of causation from the original tortfeasor s act is unbroken. Second, all allocation is based upon the rare and suspect premise of clearly divisible components of the injury. The Henry court recognized that [t]raditional California tort law holds a tortfeasor liable not only for the victim s original personal injuries but also for any aggravation caused by subsequent medical treatment, provided the injured party exercised reasonable care in obtaining the medical treatment. Henry, supra, 160 Cal.App.4th at 445, 72 Cal.Rptr. at 809. It cited, with approval, the seminal California Supreme Court case, Ash v. Mortensen, 24 Cal.2d 654, 657, 150 P.2d 876 (1944): It is settled that where one who has suffered personal injuries by reasons of the tortious act of another exercises due care in securing the services of a doctor and his injuries are aggravated by the negligence of such doctor, the law regards the act of the original wrongdoer as a proximate cause of the damages flowing from the subsequent negligent medical treatment and holds him liable therefore. Henry, supra, 160 Cal.App.4th at , 72 Cal.Rptr. at 813. The original tortfeasor s liability for enhanced injury suffered during medical treatment is not

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