Evidence of Habit Can Make or Break an Injury Lawsuit

Medical malpractice trials in Maryland are often decided based on the kind of evidence that gets in or out at trial. One kind of evidence is called “habit” evidence, and it allows someone to testify as to what they think, but don’t know for certain, they did or didn’t do in a given situation.

Malpractice and Habit Evidence

A recent case discusses how testimony of habit can affect the rights of a victim injured as a result of malpractice. In 2003, a man slipped and fell, and had pain in his knee, hip and lower back. Emergency personnel immobilized him and he was transported to the emergency room.

In the emergency room, the victim’s hip and knee pain, but not his back pain, were noted and treated and released by the triage doctor. After numerous visits with his own doctors, he was eventually diagnosed with a “burst fracture” in the vertebra fragments in his back. He was rushed back to the emergency room. Eventually, he underwent a spinal fusion. Days later, the wound was infected. The man eventually suffered cardiac arrest, ended up in a vegetative state, and died.

The victim’s estate sued the hospital doctor for malpractice, alleging that he completely failed to see or treat his back injury at the time, and that if it had been treated he would have survived. To support his argument that the victim’s back was examined, the doctor at trial testified as to what his “habit” was, specifically, that he always checked for back problems, and thus must have done so in this case.

The victim’s estate challenged the doctor’s ability to use “habit” evidence to show that he had or hadn’t performed an exam on the victim’s back on the night he was admitted, and an appeal ensued on that issue.

Habit Evidence in Maryland

Admitting habit evidence can be tricky. When someone says they do something out of habit, it doesn’t mean that’s how they reacted in a certain, particular situation. Rather, the jury is left to infer that because someone reacts a certain way as a matter of habit, that’s how they must have acted in the case they are hearing.

Maryland law does allow people to testify as to habit, which is usually defined as an activity someone doesn’t think about doing, and does with invariable regularity. The habit actions must be “semi-automatic” or reflexive in nature. Examples may be always holding a handrail down stairs, or always buckling a seatbelt.

Appellate Court Allows the Evidence

The victim’s estate argued that examining someone in a certain way doesn’t fit that definition. The doctor argued that he has performed thousands of exams, and that his routine is, in fact, habit. The difficulty of the doctor’s exam, and the fact that every patient may be different, did not change that analysis.

The court noted the doctor’s testimony that when someone comes to the emergency room on a back brace, as this victim did, that he always performs a spinal exam. The appellate court thus agreed with the doctor that the evidence was habit and that the jury could hear the doctor testify as to that fact.

The rules of evidence can make or break a medical malpractice case. Make sure you have attorneys that understand how to take injury and malpractice cases to trial. Contact the attorneys of Brassel Alexander, LLC today for a free consultation to discuss your rights.

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