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            When physicians are sued for malpractice, the central focus is what evidence is there to refute the plaintiff's allegations against them.  In many situations, a jury's decision is heavily weighed by which expert witness is more believable as to whether or not the applicable standard of care was adhered to.  Often times, however, questions of malpractice may not be so technical.  For instnace, where an allegation for malpractice concerns whether a physician gave a patient proper instructions upon discharge, the issue is one of proof as to what the physician advised the patient.  This level of proof can be problematic.

            The Massachusetts Supreme Judicial Court has confronted this issue in Palinkas v. Bennet.  In this case, a pediatrician was found not to be negligent in his treatment of an infant who suffered severe and permanant brain damage.  In so holding, the high court allowed a physician to testify regarding his routine in discharging pre-mature infants when the physician did not have an independant recollection of his discharge of this particular patient.

            An infant was born two months prematurely on July 20, 1980.  She remained hospitazized until her weight increased sufficiently.  The defendant pediatrician treated her during this time.  She was discharged from the hospital on August 18, 1980 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 pediatricians office and was advised to give the infant a suppository.  The baby slept through 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 advised to bring the infant to the office immediately.  The child ultimately was diagnosed with viral encephalitis.  Later, she was also diagnosed as having suffered anoxic brain damage due to lack of oxygen. 

            The child's parent's filed suit against the pediatrician on August 13, 1986 claiming that the pediatrician did not give the parents any advise, precautions or instructions on protecting her infant from infection.   The trial commenced on March 25, 1991.

            The physician testified that he did not have any specific memory of discharging the infant or of instructing the mother because the incident occured 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 advise he gives parents concering the proper care for the infant.  The physician testified regarding his routine for regular newborns and his routine for prematurely born newborns over his thrity 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 plaintiff's argued that the judge committed error in allowing the physician to testify regarding his routine practice to furnish parents with instructions upon discharge.  The Supreme Court, however, disagreed stating that the trial judge's ruling 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 not admissable at trial.  While evidence of business habit or custom, even if it is by one person, is admissable to prove that an act was performed in accordance with a habit. 

            The trial court in Palinkas found that the pediatrician's routine in discharging prematurely born infants constituted a business habit.  The supreme court emphasized that although the distinciton between personal habit and business habit is sometimes narrow, such a determination is left to the sound discretion of the trial judge.  Accordingly, the Supreme Court upheld the trial court's ruling to allow the pediatrician to testify as to his habit to show that his conduct in this instance was in conformity with his routine. 

            Physicians who become involved in medical malpractice litigation are should be mindful of this case law.  While this case resulted in a favorable verdict for the pediatrician, perhaps it could have been avoided all together.  No physician can be expected to recall the particulars of a situation that happened years ago.  This case, however, reinforces the importance of documentation and recordation of communications with patients.  While some practitioners may view this posture to be excessive, in hindsight, over caution can not be under estimated in this growing litigioussociety. 

Wrongful Death

by Attorney Frank E. Reardon

May 1995