Wednesday, June 2, 2010
Make It A Habit: Supreme Court Of Nevada Finds Evidence of Doctor's Routine Properly Admitted As Habit Evidence
Evidence of the habit of a person or the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
Pursuant to Federal Rule of Evidence 406 and many state counterparts, 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. And that is exactly what the Supreme Court of Nevada did in Thomas v. Hardwick, 2010 WL 2145367 (Nev. 2010).
Jesse “Ray” Thomas had undetected, advanced-stage coronary artery disease. On January 13, 2003, two weeks before his fatal heart attack, he went to WMC's emergency room, complaining of chest pains and sweatiness. The electrocardiogram and troponin tests Dr. Hardwick ran ruled out recent heart attack but not cardiovascular disease as the cause of his symptoms. The core question at trial was what Dr. Hardwick told Mr. Thomas when he saw him in the emergency room on January 13. Did Ray Thomas leave the hospital that day against medical advice, as respondents WMC and Dr. Hardwick maintain[ed]? Or was Ray Thomas told he was "fit as a fiddle" and could safely leave, as appellant Bobbie Thomas maintain[ed]?
The jury found that Ray left the hospital against medical advice and thus found that WMC did not act negligently and was not liable in Bobbie's action for wrongful death. At trial,
Dr. Hardwick testified that he has worked in WMC's emergency room since 1980, through which approximately 70,000 patients pass each year. This works out to 200 patients a day of which, on average, one patient a day presents with chest pain complaints. While Dr. Hardwick did not remember seeing Ray Thomas on January 13, 2003, his hospital chart was in evidence. Dr. Hardwick testified to what the chart recorded, including his dictated notes stating that he urged Mr. Thomas to be admitted for further tests but Mr. Thomas refused. Over objection, Dr. Hardwick testified that he routinely urges patients with chest pain complaints and inconclusive test results like Mr. Thomas's to be admitted and that he routinely records this advice in dictation, as he did here. The attending emergency room nurse gave similar testimony about her handwritten chart notes. She testified without separate objection that in the 12 years she had worked with Dr. Hardwick in the emergency room, he "admits everyone" who presents with symptoms like Mr. Thomas's.
After the jury found against her, Bobbie appealed, claiming, inter alia, that this testimony was improperly admitted. The Supreme Court of Nevada disagreed, finding that this testimony was admissible habit evidence under NRS 48.059(1). Specifically, the court noted 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.”"...Proof that Dr. Hardwick, when confronted with an emergency room patient experiencing unexplained chest pains of nonmuscular origin, routinely counsels the patient to be admitted to the hospital for observation and further testing was relevant, as was his habit of dictating multiple chart notes over the course of a patient's visit to the emergency room. This was legitimate circumstantial evidence that, consistent with Dr. Hardwick's routine, he counseled Mr. Thomas to be admitted to the hospital, as his dictated notes record.