Evidence of Habit or Routine Practice in Dental Malpractice Cases

Is evidence of a dentist’s routine practice admissible in court?

Dentists routinely perform hundreds or even thousands of dental procedures each year. Often, when a dentist is sued for medical malpractice, he or she will not recall the exact events leading up to the lawsuit. Accordingly, a dentist will often take the stand and instead attempt to testify to their custom and practice. Of course, a dentist will very rarely testify as to a practice that violates the standard of care. This clearly self-serving testimony has been the center of some controversy, with several injured plaintiffs fighting to keep out evidence of habit when they argue the practice was not followed. Our New York dental malpractice attorneys explore some case law concerning the admissibility of habit or routine in a dental malpractice case below.

Rivera v. Anilesh

In the New York case of Rivera v. Anilesh, the plaintiff filed suit against her dentist, alleging that she negligently injected the anesthesia during an extraction procedure. The defendant dentist testified as to her routine procedures for injecting anesthesia and moved for summary judgment, claiming she had no recollection of that particular injection. The plaintiff testified that the defendant had deported from her accepted practice.  

The Supreme Court granted summary judgment, but the Court of Appeals reversed. The issue went up as a certified question. The Court of Appeals held that per an earlier case, Halloran v. Virginia Chemical, evidence as to the dentist’s routine injection procedure should be admissible because she established that she performed the injections in this manner thousands of times. Halloran held that plaintiffs and defendants may be able to testify as to prior conduct to establish a routine practice. In this vain, the Court of Appeals considered the defendant dentist’s motion for summary judgment and denied it in light of the plaintiff’s evidence that suggested the defendant may not have followed her routine procedure.

New York dental patients who have been injured due to the dentist’s suspected negligence will have to overcome testimony as to the dentist’s routine or habit. The plaintiffs should anticipate that the defendant will likely attempt to testify to their routine practice, and the court could admit such evidence. The plaintiffs will need to overcome such evidence with evidence as to the defendant’s likely departure from routine during their procedure, which may be accomplished through their own testimony, medical records, or expert testimony.   

About the Author
Of all the different areas in medical malpractice, it is podiatry malpractice that has had a particular interest to me. With 42 years practicing law and representing hundreds of victims of malpractice, I have created a law practice in which my clients are comfortable knowing that their case is being handled with my personal attention, in the most professional manner, and without unreasonable delays.