Patterson v. Jewish Hospital and Medical Center of Brooklyn

• Decision Date: 21 April 1978
• Citation: 94 Misc.2d 680,405 N.Y.S.2d 194
• Parties: Mary PATTERSON, Plaintiff, v. The JEWISH HOSPITAL AND MEDICAL CENTER OF BROOKLYN, John Shapiro, John Montaze and John Moses, etc., Defendants.
• Court: New York Supreme Court

Page 194

405 N.Y.S.2d 194

94 Misc.2d 680

Mary PATTERSON, Plaintiff, v. The JEWISH HOSPITAL AND MEDICAL CENTER OF BROOKLYN, John Shapiro, John Montaze and John Moses, etc., Defendants.

Supreme Court, Special Term,Kings County, Part I.

April 21, 1978.

Katz, Shandell, Katz & Erasmous, New York City, for plaintiff.

Bower & Gardner, New York City, for defendants Hospital and Shapiro.

JOHN A. MONTELEONE, Justice.

In this medical malpractice action plaintiff moves to strike items 5, 6, 7, 8, and 9 of the defendant Dr. Dolph Shapiro's demand for a bill of particulars.

The relief requested herein is typical of numerous motions in this specialized area of law. The contested items appear in literally hundreds of demands for particulars by attorneys defending doctors and hospitals. The issue is whether these items are proper matters to be answered in a bill of particulars.

The contested demands read as follows:

5. A statement of the accepted medical practices, customs and medical standards which it is claimed were violated and departed from by the answering defendant(s) herein.

6. State the manner in which the answering defendant(s) departed from each of the above accepted medical practices, customs and standards.

7. State whether or not any claim is made as to improper or defective equipment, and if so, identify the equipment and state the defective conditions.

8. If plaintiff will claim that the answering defendant(s) ignored complaints, signs, symptoms; made an erroneous diagnosis; afforded improper treatment; administered improper and/or contraindicated drugs; administered proper drugs in an incorrect dosage; failed to take or administer tests, or improperly took and administered tests state:

(a) The complaints, signs and symptoms that the answering defendant(s) ignored;

(b) In what respect the diagnosis was erroneous and incorrect; what the claimed correct diagnosis is; the point in time that the plaintiff will claim defendant(s) should have made the correct diagnosis;

(c) The improper treatment that was afforded and in what manner the said treatment was improperly performed;

(d) The name of each and every improper and/or contraindicated drug;

(e) The name of each proper drug allegedly administered incorrectly with the dosage that plaintiff will claim was the correct dosage;

(f) The name and/or description of each and every test defendant(s) failed to take or administer;

(g) The name of each and every test defendant(s) improperly took or administered and the manner in which each such test was improperly taken or administered.

9. If plaintiff will claim that the answering defendant(s) improperly performed a surgical procedure or procedures; performed a surgical procedure that was contraindicated and/or unnecessary state:

(a) The name of the surgical procedure and the date that it was performed;

(b) Set forth what surgical procedures were contraindicated and/or unnecessary;

(c) In what manner the aforesaid surgical procedures were improperly performed.

CPLR 3043 sets forth the general guide lines for a demand in a personal injury action. The issue in dispute most often involves the requirement that a general statement of the acts or omissions constituting the negligence, or malpractice as applicable herein be set forth.

It is the contention of the plaintiff that the items demanded are improper on several grounds. Plaintiff contends that the items call for extensive disclosure of evidence and are, in effect, a set of written interrogatories, a disclosure device not available in a negligence case pursuant to CPLR 3130 (Rothholz v. Chrysler Corporation, 62 Misc.2d 901, 309 N.Y.S.2d 834; Fiorentino v. Jacques, 41 Misc.2d 972, 246 N.Y.S.2d 421).

Plaintiff also contends that the items demanded seek evidentiary matter, which is beyond the scope of a bill of particulars whose purpose is to amplify the pleadings, limit the proof and prevent surprise at the trial.

The matter herein has been the subject of prior decisions (see Cirelli v. Memorial Hospital, 45 A.D.2d 856, 358 N.Y.S.2d 537; State of New York v. Horsemen's Benevolent and Protective Assn., 34 A.D.2d 769, 311 N.Y.S.2d 511; Palazzo v. Abbate et al., 45 A.D.2d 760, 357 N.Y.S.2d 128; Horowitz v. Saydjari, 49 A.D.2d 760, 372 N.Y.S.2d 716).

More recently the Appellate Division, Second Department in the Matter of Venezia v. Klinger and Jewish Hospital and Medical Center, App.Div., 402 N.Y.S.2d 702, decided March 6, 1978, affirmed an order of this Court which struck items 5, 6, 8, and 9 which are identical to the same numbered items of the demand herein.

Defendant Shapiro relies principally upon Nelson v. New York University Medical Center, 51 A.D.2d 352, 381 N.Y.S.2d 491. In that case the Court held that where a broad complaint is served the defendant is entitled to further amplification in a bill of particulars.

The central theme in all of these cases revolves around whether the complaint is sufficiently informative as to the nature of the negligence or malpractice alleged as in the Cirelli case or broad and general as in the Nelson case, both cited supra.

Medical malpractice cases, almost invariably, involve plaintiffs whose only information concerning what occurred is divulged by the records made and kept by physicians and hospitals. Accordingly, the defendant knows more about the facts of the lawsuit than the plaintiff. It is only after extensive examinations before trial are conducted that plaintiffs are in a position to determine what, if any, departures from good and accepted practice, occurred. Very often, these disclosures as to departures or deviations are not ferreted out until the trial itself. It follows, therefore, that to request specific departures in a bill of particulars is not only evidentiary seeking expert opinion testimony, but would also serve to preclude a plaintiff if...