Virginia Injury Attorney Blog

This is nine of 13 reprinting Mr. Waterman’s leading medical malpractice article, “Healthcare Policies, Procedures & Protocols: Discoverability, Abuse, Admissibility & Legislation,” featured in VTLA’s The Journal for Spring, 2008.

C. PP&P are admissible as “habit” and/or “routine practice” evidence.

In 2000, healthcare interest lobbying secured passage of Va. Code Ann. 8.01-397.1, providing for the admissibility of habit or routine practice evidence in medical malpractice and other civil proceedings.

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eye witnesses, 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. Evidence of prior conduct may be relevant to rebut evidence of habit or routine practice.

“A ‘habit’ is a person’s regular response to repeated specific situations. A ‘routine practice’ is a regular course of conduct of a group of persons or an organization in response to repeated specific situations.”

Frequently defendant and complicit healthcare providers conveniently profess a lack of recollection of the specific malpractice-related conduct in question. Such claimed amnesia entitles them to testify self-servingly about their supposed personal habit and/or organization’s routine practice, i.e., to attest generally to having done the right thing under the circumstances. Thus, PP&P of the organization and/or of the individual stand as a singular yardstick by which to measure claimed habit and/or routine practice, necessarily making them relevant, material and even crucial evidence.

In Williamson v. Columbia/HCA John Randolph, Inc., the patient emphasized that PP&P was the “best evidence” of routine practice and habit under §8.01-397.1. The court concurred: “As far as a routine practice of an organization, now you can’t get that unless you have some record like [PP&P].”