Aikman v. Kanda

975 A.2d 152 (2009)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

P was admitted for surgery to repair her mitral valve. D performed the open-heart operation. P was slow to recover from the anesthesia, and, when she did awaken, she manifested weakness in her extremities. A brain scan revealed that P had suffered an embolic stroke. P was left with permanent physical injuries, including loss of the use of her legs and diminished use of her left hand, and emotional injuries. P sued D, contending that her injuries resulted from the air that accumulated in her heart while it was open during the surgery and that traveled to her brain afterward. P claimed that D either failed to employ procedures to remove air from her heart or performed the air drill inadequately. There was no contemporaneous notation in P's medical records indicating that D had performed an air drill before completing the surgery. No one on the surgical team could specifically recall the details of P's surgery. Dr. Kanda explained during his deposition and at trial that he performs the air drill '100 percent of the time' as an 'integral part' of mitral valve surgery, but he attributed his inability to recall his actions during P's surgery to his having performed over 500 mitral valve operations over the course of his career (with an average of forty or fifty such procedures each year). The jury returned a verdict in favor of D. P filed a motion for a new trial which was denied. P appealed contending in part that D's testimony about his routine practice of air removal following open-heart surgery amounted to inadmissible character testimony rather than habit testimony. P argues that even if D's testimony could fairly be regarded as habit testimony, habit testimony should not be allowed in a medical negligence action.