The First Department has limited the role of testimony as to custom and practice in establishing what a defendant physician did in a specific instance in medical malpractice cases in Guido v. Fielding, 190 A.D.3d 49 (2020). The Court ruled that the testimony of defendant, a surgeon, concerning his custom and practice of palpating a bowel for perforations during a LAP-BAND surgery was not admissible.

Generally, New York Courts have allowed physicians to testify as to custom and practice as habit evidence supporting an inference they acted in accordance with their custom and practice in a specific instance. Rivera v. Anilesh, 8 N.Y.3d 627 (2007). In Rivera, the Court of Appeals allowed the admission of testimony of a dentist regarding his custom and practice for administering anesthesia. The Court stated such testimony is admissible when there is proof of a deliberate and repetitive practice by a person in complete control of the circumstances. Rivera, 8 N.Y.3d at 634.

In Guido, the physician testified it was his custom and practice to carefully examine the small intestines for any intestinal content leak when performing a LAP-BAND surgery. The defendant’s expert then used this testimony as the basis for his opinion that the treatment of plaintiff was proper and in accordance with the standard of care. The First Department, however, decided the physician’s testimony regarding custom and practice was not admissible because he did not testify that carefully examining the small intestines was a “routine” procedure that did not vary from patient to patient and, therefore, could not be the basis for the expert’s opinion.

In the Guido ruling, the First Department adopted the restrictive interpretation of Rivera that the Second Department had previously adopted in Martin v. Timmins, 178 A.D.3d 107 (2d Dep’t 2019). The First Department cited both Martin and the Court of Appeals decision in Rivera when summarizing its holding. The First Department decided to follow Martin and limit the use of “custom and practice” testimony to specific procedures which are repetitive and do not vary from patient to patient. The specific action described as custom and practice must be “routine, without variation from patient to patient.” Guido, 190 A.D.3d at 54.

With the Martin and Guido rulings, the First and Second Department now uniformly hold that testimony on custom and practice by defendants in medical malpractice cases is only admissible in the case of “routine” procedures. This demonstrates the importance of laying an appropriate foundation for custom and practice testimony. It is not enough for a defendant physician to testify that he or she performs hundreds of the same procedure; the physician must testify that the procedure does not vary for 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, than it is vital that the physician maintain detailed records concerning what was done during the procedure. In Guido the physician would not have needed the custom and practice testimony if he stated that he palpated the bowel for perforations in his operative report.