Rivera v. Anilesh

Rivera commenced this action against Drs. Indu and Katte Anilesh, as well as the first two oral surgeons who treated her.^[1] Rivera’s complaint asserted causes of action for malpractice and lack of informed consent. As to the malpractice claim, Rivera alleged that Dr. Anilesh negligently performed the injections of anesthesia and extraction of the tooth, and failed to properly manage the ensuing infection.

Dr. Anilesh moved for summary judgment dismissing the complaint, relying on her deposition testimony and an affirmation from another oral surgeon. Dr. Anilesh testified that she did not recollect treating Rivera for the problem with tooth number 20 and, therefore, she could not recall what had occurred during the extraction. She did, however, state that the administration of this type of injection was a “routine procedure!]” that she did “every day” to “at least three to four or 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.

Rivera’s opposition to the motion for summary judgment was premised on her testimony that the second injection of anesthetic had caused her pain. She also submitted an expert affirmation from a dentist who averred that Dr. Anilesh had deviated from the accepted standard of care because a properly administered second injection in the same location as a first injection would not cause a patient any pain because that part of the mouth would already be numb from the first injection. The expert concluded that since Rivera felt pain, Dr. Anilesh could not have injected the second course of anesthesia in the proper location. Rivera’s expert therefore opined that the second injection was “much more likely to result in a subsequent infec

tion than an injection in the proper location” because it could cause a hematoma to form, increasing Rivera’s susceptibility to an infection. Based on the proximity of the extraction site to the area of the infection, Rivera’s expert determined that the wrongly administered second injection — not the extraction of tooth number 20 — caused the introduction of bacteria and led to the infection.

Supreme Court granted Dr. Anilesh’s motion for summary judgment. The court found that Dr. Anilesh’s deposition testimony and her expert affirmation established that she acted in accordance with generally accepted dental practices. The court also held that, even if Dr. Anilesh gave the second shot in the wrong location, the opinion of Rivera’s expert that this could result in an infection was speculative and insufficient to preclude summary judgment.

The Appellate Division reversed and denied summary judgment in a divided decision.^[2] The majority concluded that Dr. Anilesh’s testimony about her customary practice for administering anesthesia was inadmissible and could not be used to raise an inference that Dr. Anilesh adhered to her habitual protocols when she treated Rivera. Two Justices agreed that summary judgment should not have been granted, but determined that Dr. Anilesh’s testimony regarding her routine technique for administering anesthetic injections was admissible because the procedure was deliberate and repetitive, and Rivera failed to offer any evidence that the protocol for administering such an injection varied with a patient’s individual circumstances. The concurring Justices, however, found that Rivera’s statement that she was injected twice, coupled with the opinion of her expert that the second injection was given in the wrong location, created an issue of fact as to whether Dr. Anilesh adhered to accepted standards of care. The Appellate Division granted Dr. Anilesh’s application for leave to appeal to this Court and certified the following question to us: “Was the order of this Court, which reversed the order of Supreme Court, properly made?”

I

n Halloran v Virginia Chems. ( 41 NY2d 386 , 391 [1977]), we explained that “evidence of habit has, since the days of the

common-law reports, generally been admissible to prove conformity on specified occasions” because “one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again.” The applicability of this doctrine is limited to cases where the proof demonstrates “a deliberate and repetitive practice” by a person “in complete control of the circumstances” (id. at 392) as opposed to “conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances” (id. at 389). If these conditions are satisfied, “a party should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence . . . on a particular occasion” (id. at 392).

The plaintiff in Halloran, an automobile mechanic, had a practice of heating cans of Freon before transferring the gas to automobile air conditioning systems, contrary to the warnings on the labels. The plaintiff was injured when a can exploded after being heated. The manufacturer of the refrigerant sought to introduce evidence that the plaintiff had a habit of heating the cans by placing them into a container of water heated by an immersion coil. The plaintiff admitted using warm tap water on the day of the explosion, but denied that he used an immersion coil. Because there was evidence that the plaintiff had serviced hundreds of air conditioning units and handled thousands of cans of Freon, we observed that if the evidence tended to demonstrate that the plaintiff paired this practice with using an immersion coil on a sufficient number of occasions, such evidence would be admissible to raise an inference that an immersion coil was used on the day of the accident.

Aside from Halloran, we have had few opportunities to consider the contours of the habit evidence rule (see Ferrer v Harris, 55 NY2d 285 , 294 [1982] [evidence that mother had told her daughter not to cross the street without looking for cars was not admissible as habit evidence because the plaintiff made no showing of “a persistent habit or regular usage by one in control of the circumstances in which it is employed”]) and none have occurred in the context of medical or dental procedures. The Appellate Divisions have generally adopted the proposition that normal documentation and notification protocols,^[3]

routine warnings to patients^[4] and the processes for undertaking certain noninvasive medical procedures^[5] can qualify as habit evidence. In contrast, evidence concerning a physician’s surgical practices has been deemed inadmissible under the theory that every surgery is necessarily unique and varies depending on the nature of the patient’s medical condition and the actions of the doctor.^[6]

Without commenting on the propriety of these decisions, the record here supports the admissibility of Dr. Anilesh’s routine procedure for administering injections of anesthesia under the standard articulated in Halloran in light of the frequency that this technique was used in Dr. Anilesh’s dental practice and the nature of the routine conduct.^[7] Dr. Anilesh explained that she gave this type of injection every day to three to five patients and that she had been practicing as a dentist since 1982. Even by a conservative estimate, this testimony would indicate that Dr. Anilesh performed this procedure in the same manner thousands of times.

Nor do we believe that the nature of this injection process renders it unsuitable for consideration as habit evidence. Dr. Anilesh described the specific procedure that she used when injecting an anesthetic and her expert confirmed that this procedure was within the accepted standard of care for dentistry. Belatedly, there is no evidence suggesting that Dr. Anilesh’s preextraction injection procedure would vary from patient to patient depending on the particular medical circumstances or physical condition of the patient. This record therefore contains “proof of a deliberate and repetitive practice” — the mundane