Appellate Brief: Medical Malpractice Case Involving Knee Surgery
APPELLATE BRIEF ON KNEE SURGERY
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
CARREN WATSON, Plaintiff, -against-
NEW YORK METHODIST HOSPITAL and HENRY TISCHLER, M.D., Defendants. Index No. 38230/04, 5/25/06 ------------------------------------------x
Jillian Rosen, Esq., an attorney duly admitted to practice law before the Courts of the State of New York affirms the following to be true under penalties of perjury:
1. I am associated with the law firm of Weitz & Luxenberg, P.C., attorneys of record for Plaintiff Carren Watson (hereinafter referred to as “plaintiff”). I am fully familiar with the facts as circumstances of this matter by virtue of the file maintained by my office.
2. This affirmation is respectfully submitted in opposition to the Notice of Motion submitted by Defendant Henry Tischler, M.D. (hereinafter referred to as “Dr. Tischler”) for an order pursuant to CPLR §3126 dismissing plaintiff’s complaint for “failure to provide discovery; precluding evidence or directing supplementation of plaintiff’s bill of particulars.” This affirmation is submitted in further support of plaintiff’s Notice of Motion to: 1) set dates certain for defendants’ depositions, 2) deem plaintiff’s deposition waived, and c) extend plaintiff’s time to file the Note of Issue.
3. Briefly this medical malpractice action involves the negligent performance of plaintiff’s patella replacement surgery on October 22, 2002. As a result of the negligence of each defendant, the plaintiff required corrective surgery and suffers from debilitating permanent injuries. Plaintiff served a bill of particulars on February 8, 2005 and a supplemental bill of particulars (of paragraphs not relating to negligence and malpractice) on February 17, 2005. (Annexed hereto as Exhibit “A” and Exhibit “B” is a copy of plaintiff’s bill of particulars and supplemental bill of particulars, respectively). A preliminary conference was held on March 1, 2005 and a compliance conference was held on January 11, 2006 which directed that the deposition of the plaintiff be conducted by February 15, 2006. (Annexed hereto as Exhibit “C” and Exhibit “D” is a copy of the preliminary conference order and the compliance conference order, respectively).
4. Contrary to Dr. Tischler’s counsel’s belief, the plaintiff is not required by Law to “more particularly plead her claims of negligence and malpractice”. It has long been held by the Appellate Division, Second Department that a request for a Bill of Particulars to contain specific departures or deviations from acceptable medical practice as well as a request for information regarding the performance of tests or procedures including x-rays and radiographic studies is evidentiary in nature and improper.
5. The well-known case of Patterson v. The Jewish Hospital and Medical Center of Brooklyn, 94 Misc.2d 680, 405 N.Y.S.2d 194, 196 (Sup. Ct., Kings Co., 1978); affd. 65 A.D.2d 553, 409 N.Y.S.2d 124 (2d Dept. 1978) is instructive on this subject. The court opined:
“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 testimony is adduced at trial of a departure not specifically pleaded.”
6. The court in Patterson, supra, further concluded:
“The defendant physician is chargeable, under our law, of knowing those medically accepted standards, applicable to the proper care and treatment of the plaintiff. It logically follows that there is no need to set forth matters which are known to the defendant. It is for this reason that defendant physicians have been reform plaintiffs of the care and treatment rendered by them and to set forth whether such care and treatment was in compliance with good and accepted medical practice.” Ibid.
7. The purpose of a bill of particulars is to apprise a defendant of the general areas of negligence or malpractice on which a plaintiff will rely. The value of a sufficiently informative bill of particulars is to sharpen the issues before proceeding to the disclosure stage of litigation and to isolate the particular acts forming the basis of the complaint. Twenty years later, the Appellate Division, Second Department in Dellaglio, et al., v. Paul, etc., et al, 250 A.D.2d 806, 673 N.Y.S.2d 212, 213-214 (2d Dept. 1998), upheld the standard enunciated in Patterson, supra, and opined:
“...there is no need for the plaintiffs to set forth the manner in which the physicians failed to act in accordance with good and accepted medical practice since a physician is chargeable with knowing those medically accepted standards applicable to the proper care and treatment of the plaintiff (citing, Patterson, supra). ...Further, the request for specific departures in a bill of particulars is evidentiary (citing, Patterson, supra). The request for information regarding the performance of test or procedures including x-rays and radiographic studies was likewise evidentiary in nature (citing, Patterson, supra).
8. Last year, the Appellate Division, Second Department in Rodriguez, etc., v. Booth Memorial Medical Center, et al., 14 A.D.3d 688, 789 N.Y.S.2d 235, 236 (2d Dept. 2005) again revisited this issue and denied defendants’ motions to dismiss and preclude plaintiff from offering certain expert testimony at trial. The court held:
“The plaintiff’s bill of particulars, which stated that the defendants failed to diagnose chorioamnionitis and that the plaintiff sustained, inter alia, cerebral palsy as a result of the defendants’ negligence, was sufficient to alert the appellants to the plaintiff’s theory of liability and his injuries.” (citations omitted).
9. Applying the current law to the facts before this court, the following specific requests (contained in Dr. Tischler’s cross-motion) to supplement plaintiff’s bill of particulars are evidentiary in nature and improper. More offensive is Dr. Tischler’s counsel’s obstruction of plaintiff’s court-ordered deposition and his contention that this information is needed before we can proceed:
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