Stidham v. Clerk

Memorandum: Plaintiff, as temporary administratrix of decedent’s estate, commenced this action seeking damages for, inter alia, the alleged medical malpractice of Harnath Clerk, M.D. (defendant) in his treatment of decedent. Supreme Court properly denied the motion of defendant seeking to compel plaintiff to provide further particulars with respect to demand numbers one and two in his demand for a bill of particulars. We reject defendant’s contention that the response by plaintiff to demand number one is vague and nonresponsive. It is well established that “a bill of particulars in a medical malpractice action, as in any action for personal injuries, requires a general statement of the acts or omissions constituting the negligence claimed” (Garrett v Community Gen. Hosp. of Greater Syracuse, 288 AD2d 928, 929 [2001] [emphasis added and internal quotation marks omitted]; see CPLR 3043 [a] [3]). Demand number one sought “the manner and respect in which it is claimed the defendant was negligent . . . including but not limited to, how defendant deviated from the standard applicable to cases involving the treatment of the condition which affected plaintiff’s decedent.” Plaintiff responded that, inter alia, defendant failed to detect or diagnose decedent’s medical condition or to recognize the seriousness of the condition, failed to provide timely medical treatment or to seek consultation by another physician, and failed to transfer decedent to a hospital facility. When read in conjunction with plaintiffs response to demand number six, in which plaintiff explained that decedent suffered from, inter alia, severe anemia, aspirated pneumonia, sepsis, hyperkalemia, hypoxia, hypotension, mucous plug development, lacerations, 1370 contusions, dehydration, malnutrition, and a decreased ability to ambulate and perform activities of daily living, we conclude that the response by plaintiff to demand number one satisfied the purpose of the bill of particulars, i.e., “ ‘to amplify the pleadings, limit proof, and prevent surprise at trial’ ” (Khoury v Chouchani, 27 AD3d 1071, 1072 [2006]; see Lamb v Rochester Gen. Hosp., 130 AD2d 963 [1987]). Furthermore, we note that plaintiff stated in her response that “[fjurther information responsive to this demand is presently unknown and unavailable to [her],” and she reserved her right to amend her response to demand number one after the completion of discovery (see Lamb, 130 AD2d at 964). With respect to demand number two, wherein defendant sought “the condition it is claimed defendant failed to take proper and due cognizance of, and the true condition from which decedent was suffering,” we conclude that defendant improperly sought “more than generalized allegations of negligence, sufficient to narrow the issues for discovery and trial” (Khoury, 27 AD3d at 1072). Indeed, defendant improperly demanded information regarding what “diagnosis or treatment should have been made or given, [which] call[s] for expert testimony and [is] purely evidentiary” (McKenzie v St. Elizabeth Hosp., 81 AD2d 1003, 1004 [1981]; see generally Khoury, 27 AD3d at 1072). All concur except Hurlbutt and Lunn, JJ., who dissent in part and vote to modify in accordance with the following memorandum: