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Thomas A. Moore and Matthew Gaier Thomas A. Moore and Matthew Gaier

In most medical malpractice actions, the defendants and other medical professionals who rendered the care and treatment that is the subject of the lawsuit do not have specific recollections of all of the events. Therefore, they often testify about their custom and practice. Seldom, if ever, does a defendant testify to a custom and practice that violates the standard of care. Accordingly, this testimony can be very self-serving. It has been 21 years since we addressed the case law analyzing the admissibility of evidence of habit or routine practice. See Moore & Gaier, Evidence of a Doctor’s Routine Practice, N.Y.L.J. Dec. 1, 1998, p. 3. There have since been a handful of significant decisions on the issue, and they are the subject of this column.

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