What is the test for admissible evidence in a medical malpractice case?

Plaintiff contends that the challenged evidence was admissible to attack defendant's credibility. ( 1101, subd. (c); see, e.g., People v. Millwee (1998) 18 Cal.4th 96, 130-131 [74 Cal.Rptr.2d 418, 954 P.2d 990].) However, plaintiff never sought to introduce this evidence for such a purpose, and the evidence was not admitted under that theory.

(5) Plaintiff asserts that the uncharged acts were admissible under section 1105 to demonstrate that defendant acted in accordance with his usual custom or habit. This statute provides: "Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom." This statute is inapplicable to the present case. Custom or habit involves a consistent, semiautomatic response to a repeated situation. (People v. Memro (1985) 38 Cal.3d 658, 681, fn. 22 [214 Cal.Rptr. 832, 700 P.2d 446]; Webb v. Van Noort (1966) 239 Cal.App.2d 472, 478 [48 Cal.Rptr. 823].) For the reasons we have already explained, defendant's conduct, occurring in different circumstances, toward nine of some 45,000 patients, does not qualify as custom or habit. Improper character evidence does not become admissible simply by citing to section 1105 and claiming actions in accordance with a custom or habit. The evidence introduced here did not relate to custom or habit; it was instead plain and simple character evidence, and inadmissible.

Finally, even if we were to conclude that the proffered evidence was proper under section 1101, we would nonetheless conclude that the trial court abused its discretion under section 352 in permitting the testimony of these former patients. (See People v. Ewoldt, supra, 7 Cal.4th at pp. 404-405.) Plaintiff presented the testimony of 13 witnesses to describe defendant's treatment of other problem patients. These incidents, some occurring as many as 11 years earlier, involved different circumstances and different conduct on the part of defendant. While plaintiff contends they all demonstrated inappropriate treatment of patients, that descriptive rubric is far too broad to be of much probative value. None of the incidents involved an attempt to give a child an

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