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Admissibility of Custom and Practice Evidence in Medical Malpractice Cases

By Alan W. Clark
April 02, 2015

Can evidence of a health care provider's custom and practice be admissible as habit evidence to prove a fact in malpractice cases? Can such evidence be proof in support of or against the standard of care sufficient to support or oppose a motion for summary judgment for or against a party? Can such evidence arise from a creative imagination and be a poor excuse for medical negligence?

The simple answer to all is, “Yes.” Therefore, the courts must choose to exercise much scrutiny and discretion before allowing such evidence to be admissible. By way of example, we will look at the how the issues have been handled in the State of New York.

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