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  • Taking Chances2:24

The Massachusetts Supreme Judicial Court has confronted this issue in Palinkas v. Bennett. In this case, a pediatrician was found not to be negligent in his treatment of an infant who suffered severe and permanent brain damage. Through this ruling, the high court allowed the physician to testify about his routine practice and discharging premature infants when the physician could not recall specifics about his discharge of this particular patient.

The infant was born two months prematurely, and she remained hospitalized until her weight increased sufficiently. The defendant pediatrician treated her during this time. She was discharged from the hospital at a time when her two young siblings were home sick with the flu. The next day, the infant’s mother noticed that she appeared sick and would cry uncontrollably. Occasionally, she had a cross-eyed look and appeared to be holding her breath. The mother called the pediatrician's office and was advised to give the infant a suppository. The baby slept through to the next morning.

The next afternoon, the infant continued to cross her eyes and held her breath with greater frequency. This time when the mother called the pediatrician's office, she was told to bring the infant to the office immediately. The child was diagnosed with viral encephalitis. Later, she was also found to have suffered an anoxic brain event.

The child's parents filed suit against the pediatrician six years later, claiming that the physician did not give the parents any advice, precaution or instructions on protecting the infant from infection. The child commenced five years after that. By then, it was eleven years after the incident.

The physician testified that he did not have any specific memory of discharging the infant or instructing the mother because the incident occurred so long ago. Over the objection of the plaintiff, however, the judge permitted the physician to testify concerning the routine practice he follows when discharging a newborn infant from the hospital, including the advice he gives parents concerning the proper care for the infant.

The physician testified about his routine for premature newborns over his thirty years of practice and that he invariably followed these routines. He also admitted that if he had not provided the parents with such instructions, it would have constituted negligence. The jury returned a verdict in favor of the pediatrician and the parents appealed.

The Supreme Court appealed the trial judge's ruling, however, stating it was supported by case law. Massachusetts draws a distinction between evidence of personal habit and evidence of business habit or custom. Evidence of personal habit is traditionally not admissible at trial. While evidence of business habit or custom, even if it is by one person, is admissible to prove that an act was performed with accordance with that habit.

While this case resulted in a favorable verdict for the pediatrician, perhaps it could have been avoided all together. This case reinforces the importance of documenting communication with patients. Notes in the record about instructions given to patients afford physicians much more protection than relying on testimony about routine practice. And allegations many years later may involve physician-patient discussions that are not routine.

Good notes are also useful in supporting a physician's testimony about routine practice. An example is a brief summary about an informed consent discussion. A sample in the notes of some of a treatment’s risks that were discussed with the patient can later remind the physician that full discussion of the risk occurred if that was the physician's routine practice.

No physician can be expected to recall the particulars of a situation that happened many years ago. It is good to know that routine business practices might help the physician testify that the standard of care was met but contemporaneous documentation of vital communication with patients is a far better strategy involving far less risk.

Evidence of  Customary Practice

by Attorney Frank E. Reardon

July 1995

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