Nevada Litigation Blog

Health Care Professionals Can Testify About Their “Habit” To Help Estabilsh Compliance

Written by: Edgar Carranza

“Health Care Professionals Can Testify About Their “Habit” To Help Estabilsh Compliance With The Standard Of Care”

Health care professionals often cannot recall specific patients who they treat on one or a few occasions.  This phenomenon is not indicative of their lack of bed side manner, but rather is the result of the high volume of patients some of these professionals see on any given day.  Whether it is a medical doctor, chiropractor or dentist, their busy practices often lead to blurring of visits.


Unfortunately, after a lawsuit has been filed the details of these visits become of paramount importance to the defense of these professionals.  More often than not the lawsuits come many months, if not years, after the visit which further adds to the professionals’ inability to recall the encounter.  So how does a professional defend himself/herself from claims that the professional failed to follow the standard of care, when he/she cannot recall the patient, much less what he did for that patient?  Thankfully, the Nevada Supreme Court has recently confirmed that in these types of situations, a professional can testify as to his/her habit when faced with patients in similar situations.


In Thomas v. Hardwick, 126 Nev. 16, 231 P.3d 1111 (May 2010), the surviving spouse of a patient sued the medical doctor for malpractice.  Two weeks before his fatal heart attack, the patient went to the emergency room complaining of chest pains and sweatiness and was seen by the defendant doctor.  The doctor conducted an electrocardiogram and troponin tests by which he ruled out a recent heart attack but not cardiovascular disease as the cause of the patient’s symptoms.  The core question at trial was what did the doctor tell the patient when he saw him in the emergency room: 1) did the patient leave the hospital that day against medical advice, as maintained by the doctor; or 2) was the patient told he was “fit as a fiddle” and could safely leave, as maintained by the plaintiff?


A copy of the patient’s hospital chart, which was authenticated in discovery and used at trial, indicated that the patient left the emergency room against medical advice or “AMA.”  It contains an order by the doctor directing hospital staff to ask the patient to sign an AMA release, but no signed release was ever produced.  The doctor sees thousands of patients each year and could not recall the patient specifically, but based on his dictated chart notes and customary practice in treating chest pain patients, he testified at trial that he urged the patient to be admitted for observation and testing but he refused.  Not surprisingly, the patient’s wife disputed this evidence at trial claiming that she came to the emergency room with her husband and sat in on his conversations with the doctor.  She recalled the doctor saying that, while he normally urged chest pain patients to be admitted, her husband’s preliminary test results were good enough for him to go home, so long as he followed up promptly with a private physician. A family member arrived as the patient was preparing to leave and recalled the patient saying, within earshot of the doctor who said nothing, that the doctor had told him he was lucky and could safely leave.


Like many courts, the Nevada Supreme Court echoed that “[w]e are cautious in permitting the admission of habit or pattern-of-conduct evidence under [NRS 48.059 or its federal analogue] Rule 406 because it necessarily engenders the very real possibility that such evidence will be used to establish a party’s propensity to act in conformity with its general character,” in violation of NRS 48.045, and may involve “collateral inquiries [that] threaten the orderly conduct of trial while potentially coloring the central inquiry and unfairly prejudicing the party against whom they are directed.”  Nonetheless, NRS 48.059(1) deems evidence of habit or routine relevant and admissible to prove an act in conformity with the habit or routine, provided an adequate foundation is laid.  It went on to note that “Courts in many jurisdictions have allowed evidence of a medical practitioner’s routine practice as evidence relevant to what the practitioner did on a particular occasion.”


With the blessing of the Nevada Supreme Court, professionals will be able to testify about their professional habit and routine when seeing patients under specific circumstances.  Certainly, the decision in the Hardwick case was helped by the fact that the doctor had noted in his chart that the patient declined admission against the advice of the treating physician.  Given this decision, it is always the best practice to document the chart completely.  That is even more important when faced with a patient who declines to follow the doctor’s advice.

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