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Maryland Court Permits Habit Testimony in Medical Malpractice Case

hospital roomIn Rosebrock v. Eastern Shore Emergency Physicians, LLC, the Maryland Court of Special Appeals dealt with the admissibility of habit evidence under Maryland Rule 5-406. Specifically, it considered whether habit evidence of an ER physician could be entered into evidence.

The facts of the case are as follows. A patient was taken to the emergency room on a backboard due to knee, hip, and lower back pain after a fall. The ER physician ordered an x-ray of the patient’s knees and hips. The x-ray came back negative, at which point the physician discharged her, stating she had minor knee and hip contusions. There is no record that the physician examined the patient’s back, despite the fact that she conveyed her back was hurting to the triage nurse.

The patient went home but continued to suffer back pain. She visited other physicians, and later tests showed that she did indeed have a fractured vertebrae and needed spinal fusion surgery. Tragically, the surgery resulted in an infection that caused a brain injury to the patient. She ended up in a persistent vegetative state and remained in that state until her death seven years later.

Two years prior to the patient’s death, her acting guardian filed a medical malpractice lawsuit against the ER physician and others. The ER physician stated that she did not remember treating the patient but that she routinely conducted spinal examinations on every patient on a backboard and thus must have conducted one on this patient as well. The plaintiff’s lawyer objected to this testimony, but the court overruled, explaining it was permissible habit testimony under Maryland law.

Under state law, evidence of an individual’s habit under similar circumstances may be used to show that his or her conduct in a particular situation would be in accordance with the habit. Here, habit evidence was admissible to establish that the ER physician conducted a similar examination every time she treated a patient. Habit is defined as a regular tendency or practice. In figuring out whether the behavior can be considered a habit, the court will examine the number of times the person engaged in the conduct as well as the regularity of the conduct.

In addition, the court highlighted that habit evidence does not need to be corroborated by someone else in order to be admitted into evidence. Instead, the lack of corroboration will be a factor when the jury is assessing the weight of the evidence.

Medical malpractice claims can be very complex. At Arfaa Law Group, our Baltimore medical malpractice attorneys are well versed in virtually every aspect of medical malpractice law and can put our knowledge to use in your case. With years of experience, we understand how to build a case as well as all the procedural rules of which attorneys should be aware. You can rest assured that you are in good hands. We will keep you informed about the status of your case at every step of the way. For more information, do not hesitate to call 410-889-1850 or contact us online.

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