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"Invariable practice" evidence need not be insurmountable

Medical malpractice lawyer explains how this seemingly patent advantage for physicians can be refuted at trial

"Invariable practice" evidence need not be insurmountable
Heidi Brown is a partner at Bogoroch & Associates LLP.

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Evidence of “usual or invariable practice” in the context of medical malpractice cases frequently provides physicians with a significant advantage at trial. Physicians who have no specific recollection of their dealings with a patient are entitled to testify as to what their ordinary or invariable practice is, which is considered strong evidence that they acted the same way on the day in question in the matter before the Court. A physician’s evidence of invariable practice may contradict the patient’s evidence of the same events and carries a great deal of influence with the Court in making findings of credibility of the parties. This kind of evidence is an advantage, says one leading medical malpractice lawyer, but it is not always an insurmountable one.

Heidi Brown, partner at Bogoroch & Associates LLP, says that “the Ontario Court of Appeal has accepted that it's appropriate for judges to rely on that type of evidence. The case of Turkington v. Lai, 2007 CanLII 48993 (ONSC) has been consistently cited in support of the proposition that the Court is entitled to give significant weight to evidence of usual or invariable practice.” Nevertheless, Brown says that “each case ultimately turns on an assessment of the totality of the evidence and the evidence itself in determining the weight to give to evidence of invariable practice.”

 In a medical malpractice case, it is commonplace for a physician to no longer have any specific recollection or memory of the events in question given the passage of time and the volume of her practice. “It is important to obtain that admission from the physician at the examination for discovery,” says Brown, “so that their reliance on their notes becomes all the more important at the trial.”

 Brown says the evidence of invariable practice will be met with scepticism by the Court if the physician’s written records of the interaction with the patient tell a different story.  A diligent medical malpractice lawyer will scrutinize the physician’s clinical notes and challenge them if they too brief, or lacking in accuracy and completeness. By pointing out errors in the written record, particularly if the physician’s notes were not made contemporaneously with the events in question,  the Court is far less likely to give evidence of invariable practice a great deal of weight. “It becomes problematic for a physician to then assert evidence of invariable practice to try to explain away poorly prepared and inaccurate notes and records,” says Brown.  

One example in the case law where evidence of invariable practice was not accepted is Barber v. Humber River Regional Hospital, 2016 ONCA 897 The Ontario Court of Appeal held that while the trial judge had to consider the evidence of invariable practice, she did not have to accept it as accurate. The defendant physician in Barber testified at trial that it was his “invariable charting practice” to note a change in the patient’s mental status, an occurrence key to the case. The physician claimed because no such note existed in this case, there must not have been any notable change. The Court of Appeal upheld the decision of the trial judge to place little weight on the defendant physician’s evidence of invariable practice given omissions in the charts which were noted to be “incomplete, to say the least.” 

Brown says that charting is particularly crucial in overcoming a physician’s evidence of invariable practice in cases of informed consent. For example, patients will allege that their physicians did not apprise them of risks associated with a particular surgery or procedure, and had they been so apprised, they would not have undergone it. The inquiry tends to focus on the reliability of evidence of invariable practice and credibility of the witnesses, with regard to the physician’s chart. 

If the credibility of the patient and doctor are otherwise equal but the physician’s chart is incomplete or inaccurate, the patient’s lawyer will argue that the evidence of a witness who has only one transaction to remember should be preferred over the evidence of a witness who has many similar transactions to recall and no particular reason to remember it.  Brown says that in these cases, errors and gaps in the physician’s charting can see the physician’s invariable practice evidence diminished and the plaintiff’s case strengthened.

An important consideration Brown points out is a physician’s work experience in attempting to rely on    “invariable practice.” In Hillis v Meineri, 2017 ONSC 2845 the defendant physician gave evidence of “invariable practice” in the administration of an anesthetic. The judge found, however, that the physician had not been administering anaesthesia unsupervised for a “significant enough period of time” to establish an invariable practice let alone an invariable practice entitled to deference.

While evidence of invariable practice evidence is advantageous for defendant physicians to rely upon, a focus on charting, diligent work, and record keeping can turn what seems like a mountain into an easier climb for any victim of medical malpractice.

“For this evidence to be given a lot of weight, it’s only as good as the chart,” Brown says. “That evidence has to make sense and be supported by the documentation. A good plaintiff’s lawyer will attack the reliability of the invariable practice evidence and erode the physician’s credibility in absence of a corroborative chart.” Heidi Brown and Richard Bogoroch together with their colleagues on the Firm’s medical malpractice team seek to limit the ambit of the invariable practice defence to the rare situations to which it may apply.

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