Although Kimberly L. Thomas claimed her surgeon, Dr. Sharon Samuels, committed malpractice -- "cutting or burning her long thoracic nerve" -- during surgery, Dr. Samuels countered that Thomas incurred a "stretch injury" while undergoing the procedure.
At the end of the trial, the Schenectady County Supreme Court (over Thomas's objection) instructed the jury as to the doctor's "habit in performing surgeries." When the jury returned a verdict in the surgeon's favor, an appeal to the Appellate Division, Third Department, followed.
While no evidence of Samuels' surgical "habits" was introduced at trial, and no mention of same was made in either the physician's opening or closing arguments, the AD3 didn't think the jury was confused or influenced by the trial court's error -- particularly since expert testimony established that, based on the incision's location, it wouldn't have been possible for Samuels to reach the area where the damaged nerve was located.
You can't get more cutting than that.
To view a copy of the Appellate Division's decision, please use this link: Thomas v. Samuels