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medical expensesCan evidence of a health care provider’s custom and practice be admissible at trial as habit evidence to prove a fact or standard of care? Can such evidence be proof in support of due care or lack thereof 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 questions is yes. Therefore, the courts must choose to exercise much scrutiny and discretion before allowing circumstantial evidence to be admissible creating an inference of due care or lack thereof.

The discussion begins with the seminal Court of Appeals decision in Halloran v. Virginia Chemicals, 41 N.Y.2d 386 (1977), a product liability case in which the defense sought to introduce evidence of plaintiff’s “usage and practice” to use an immersion coil to heat the water into which the Freon (the product) was placed causing the explosion seriously injuring the plaintiff.

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