Aikman v. Kanda
2009 WL 1789196, 2009 D.C. App. LEXIS 238, 975 A.2d 152 (2009)
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Rule of Law:
A surgeon's testimony describing their detailed, invariable, and frequently repeated practice for a complex surgical procedure is admissible as habit evidence to prove that their conduct on a particular occasion conformed with that practice, even if they have no specific recollection of the event.
Facts:
- In October 2001, Dr. Louis Kanda performed open-heart mitral valve repair surgery on Evelyn Aikman.
- Following the surgery, Aikman was slow to recover from anesthesia and awoke with weakness in her extremities.
- A brain scan the next day revealed that Aikman had suffered an embolic stroke, caused by particles traveling to her brain.
- The stroke left Aikman with permanent physical injuries, including the loss of use of her legs and diminished use of her left hand.
- Aikman contended her stroke was caused by air that entered her brain because Dr. Kanda either failed to perform, or inadequately performed, procedures to remove air from her heart (an 'air drill').
- Due to the passage of time, neither Dr. Kanda nor anyone on the surgical team could specifically recall the details of Aikman's surgery.
- Dr. Kanda had performed over 500 mitral valve operations during his career, averaging 40 to 50 per year.
Procedural Posture:
- Evelyn Aikman sued Dr. Louis Kanda and his professional association in the trial court for medical malpractice.
- Following a trial, the jury returned a verdict in favor of Dr. Kanda on all counts.
- Aikman filed a motion for a new trial with the trial court.
- The trial court judge denied Aikman's motion for a new trial.
- Aikman (appellant) appealed the trial court's denial of her motion to the District of Columbia Court of Appeals, where Dr. Kanda was the appellee.
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Issue:
Is a surgeon’s testimony about their routine practice for performing a complex surgical procedure, which they have conducted hundreds of times, admissible as habit evidence to prove their conduct conformed to that practice on a particular occasion?
Opinions:
Majority - Thompson, Associate Judge
Yes, a surgeon's testimony about their routine practice is admissible as habit evidence. The court held that such evidence can be admitted to show that the surgeon acted in conformity with that practice during a specific procedure, even if they cannot recall it. The court reasoned that Dr. Kanda's testimony about performing the air drill '100 percent of the time' during more than 500 mitral valve operations, described in specific, step-by-step detail, was sufficient to establish a 'regular response to a repeated situation' that was 'semi-automatic in nature.' This specificity distinguishes it from inadmissible character evidence, which is merely a generalized description of a person's disposition. The court concluded that the volitional nature of a complex surgical procedure goes to the weight of the habit evidence, not its admissibility. The court also affirmed the trial court's other rulings, finding no abuse of discretion in giving a 'bad result' jury instruction, managing a mid-trial discovery violation by allowing curative depositions instead of excluding evidence, or qualifying a defense expert.
Analysis:
This decision solidifies the use of habit evidence as a viable defense in medical malpractice litigation within this jurisdiction, particularly for high-volume procedures. It allows medical professionals who cannot recall one specific procedure among hundreds to introduce evidence of their consistent, routine practice to rebut allegations of negligence. The ruling distinguishes between inadmissible general character evidence ('I am a careful surgeon') and admissible specific habit evidence ('This is the detailed, step-by-step procedure I follow every time'). This precedent will likely influence how malpractice cases are litigated, encouraging a focus on the credibility and specificity of a claimed routine when direct recollection is absent.
