Is a Dentist's Testimony Regarding Routine Administration of an Anesthetic Admissible as Habit Evidence in a Malpractice Trial?
I came upon this blog and thought it was an interesting read on Sui Generis--a New York law blog.
I've always enjoyed evidentiary issues and for that reason was excited to read a recent opinion by the New York Court of Appeals regarding the admission of habit evidence in a dental malpractice action.
In Rivera v Anilesh, 2007 NY Slip Op 05134, the plaintiff sued a number of people, including her dentist, alleging that a severe infection in her jaw originated with malpractice committed by her dentist while injecting a second round of anesthesia during the course of removing the plaintiff's tooth.
The defendant dentist moved for summary judgment, alleging that she had no recollection of the specific procedure at issue. As such, she relied upon her customary practice to establish that the treatment rendered to the plaintiff on the date of the alleged malpractice did not differ from her ordinary methods.
(She) state(d) that the administration of this type of injection was a "routine procedure[]" that she did "every day" to "at least three to four to five" patients and that she had been practicing as a dentist since 1982. Dr. Anilesh further explained that a second injection of anesthesia was required in 15% to 20% of her cases. She provided a step-by-step description of the procedure she used to give injections to her patients and claimed that, when a second injection was necessary, she administered it at the same site as the first injection. Dr. Anilesh noted that if a patient complained of unusual pain or any other unexpected events occurred during treatment, she would make a notation in the patient's medical chart but that no such note existed for Rivera. Dr. Anilesh's expert opined that Dr. Anilesh's treatment of Rivera was within the applicable standard of care in dentistry.
Click here to read the entire blog entry
I've always enjoyed evidentiary issues and for that reason was excited to read a recent opinion by the New York Court of Appeals regarding the admission of habit evidence in a dental malpractice action.
In Rivera v Anilesh, 2007 NY Slip Op 05134, the plaintiff sued a number of people, including her dentist, alleging that a severe infection in her jaw originated with malpractice committed by her dentist while injecting a second round of anesthesia during the course of removing the plaintiff's tooth.
The defendant dentist moved for summary judgment, alleging that she had no recollection of the specific procedure at issue. As such, she relied upon her customary practice to establish that the treatment rendered to the plaintiff on the date of the alleged malpractice did not differ from her ordinary methods.
(She) state(d) that the administration of this type of injection was a "routine procedure[]" that she did "every day" to "at least three to four to five" patients and that she had been practicing as a dentist since 1982. Dr. Anilesh further explained that a second injection of anesthesia was required in 15% to 20% of her cases. She provided a step-by-step description of the procedure she used to give injections to her patients and claimed that, when a second injection was necessary, she administered it at the same site as the first injection. Dr. Anilesh noted that if a patient complained of unusual pain or any other unexpected events occurred during treatment, she would make a notation in the patient's medical chart but that no such note existed for Rivera. Dr. Anilesh's expert opined that Dr. Anilesh's treatment of Rivera was within the applicable standard of care in dentistry.
Click here to read the entire blog entry
Comments