Opinion
No. 2014–0482.
07-01-2016
Amy PATRIE and Leonard Patrie, Plaintiffs, v. Victoria A. CAMBA, D.O.; Stoyan Grakov, M.D., individually and as an officer, agent an/or employee of Neurology of CVPH; Boris Y. Chulpayev, M.D., individually and as an officer, agent and/or employee of Neurology of CVPH, Neurology of CVPH, by and through its officers, agents and/or employees; Vladimir Sabayev, M.D., individually and as an officer, agent and/or employee of Champlain Valley Pulmonary Associates ; Champlain Valley Pulmonary Associates, by and through its officers, agents and/or employees; John Agbi, M.D ., individually and as an officer, agent and/or employee of Crystal Run Healthcare; Crystal Run Healthcare, by and through its officers, agents and/or employees; and Champlain Valley Physicians Hospital Medical Center, by and through its officers, agents and/or employees, Defendants.
Bottar Leone, PLLC, Syracuse (Paul G. Lyons of counsel), for plaintiffs. Stafford, Owens, Piller, Murnane, Kelleher & Trombley, PLLC, Plattsburgh (Walter L. Williams of counsel), for defendants Stoyan Grakov, M.D., Neurology of CVPH, Boris Y. Chulpayev, M.D. Vladimir Sabayev, M.D., Champlain Valley Pulmonary Associates and Champlain Valley Physicians Hospital Medical Center. Napierski, Vandenburgh, Napierski & O'Connor, LLP, Albany (Shawn Brousseau of counsel) for defendant John Agbi, M.D. Phelan, Phelan & Danek, LLP, Albany (Robin B. Phelan of counsel) for defendant Victoria Camba, D.O.
Bottar Leone, PLLC, Syracuse (Paul G. Lyons of counsel), for plaintiffs.
Stafford, Owens, Piller, Murnane, Kelleher & Trombley, PLLC, Plattsburgh (Walter L. Williams of counsel), for defendants Stoyan Grakov, M.D., Neurology of CVPH, Boris Y. Chulpayev, M.D. Vladimir Sabayev, M.D., Champlain Valley Pulmonary Associates and Champlain Valley Physicians Hospital Medical Center.
Napierski, Vandenburgh, Napierski & O'Connor, LLP, Albany (Shawn Brousseau of counsel) for defendant John Agbi, M.D.
Phelan, Phelan & Danek, LLP, Albany (Robin B. Phelan of counsel) for defendant Victoria Camba, D.O.
ROBERT J. MULLER, J.
This is a medical malpractice action seeking damages arising out of an alleged medical malpractice occurring in connection with Amy Patrie's admission to, and discharge from, the CVPH Emergency Care Center (“ECC”) on October 11, 2013, and her later admission as an inpatient at Champlain Valley Physician's Hospital Medical Center via the ECC from October 12 to October 17, 2013. A dispute has arisen with respect to the plaintiffs' particularizations in their bill of particulars submitted to defendant physicians Stoyan Grakov, M.D., Boris Y. Chulpayev, M.D., Vladimir Sabayev, M.D. [defendant physicians], together with Neurology of CVPH, Champlain Valley Pulmonary Associates and Champlain Valley Physicians Hospital Medical Center [the latter three “medical facility” defendants]. Each of these defendants have objected to paragraphs 8 through 13 of the verified bill of particulars and now move pursuant to CPLR 3124 and 3126 to strike these paragraphs on the ground that they are not sufficiently particular or are overly broad. These defendants also move to compel responses pursuant to CPLR 3042.
With respect to the defendant physicians the responses convey the general manner in which it is alleged that harm was caused to the plaintiff with specific responses such as the defendants having failed to timely diagnose and treat a cerebral vascular event prior to permanent neurological injury ; having failed to administer thrombolytic therapy, failing to timely order diagnostic studies, failing to timely review and act upon the results of diagnostic studies performed, failing to reasonably and properly interpret the results of diagnostic studies performed, failing to re-order diagnostic studies, failing to heed patient complaints, failing to reasonably and properly monitor and, or, treat blood pressure, failing to formulate an accurate differential diagnosis, failing to reconsider the differential diagnosis formed, and, inter alia, failing to inform and warn of the risks involved or associated with a proposed treatment.
The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial' “ (Hayes v. Kearney, 237 A.D.2d 769, 655 N.Y.S.2d 170, quoting Twiddy v. Standard Mar. Transp. Servs., 162 A.D.2d 264, 265, 556 N.Y.S.2d 622 ; see, MacDormand v. Blumenberg, 182 A.D.2d 991, 992, 582 N.Y.S.2d 300 ). “The responses to a demand for a bill must clearly detail the specific acts of negligence attributed to each defendant' “ (Hayes v. Kearney, supra, at 769, 655 N.Y.S.2d 170, quoting Miccarelli v. Fleiss, 219 A.D.2d 469, 470, 631 N.Y.S.2d 159 ). There is no distinction between a medical malpractice action or any other action for personal injuries. The bill of particulars “requires only a[g]eneral statement of the acts or omissions constituting the negligence claimed' “ (Rockefeller v. Hwang, 106 A.D.2d 817, 818, 484 N.Y.S.2d 206, quoting CPLR 3043[a][3] ; see, Coughlin v. Festin, 53 A.D.2d 800, 385 N.Y.S.2d 166 ). See also Felock v. Albany Medical Center, 258 A.D.2d 772, 685 N.Y.S.2d 844.
With this in mind the Court finds that the bill of particulars is sufficient with respect to each of the moving defendant physicians and declines to strike paragraphs 8, 9, and 11. This is not also true, however, concerning the medical facility defendants—each represented by the same counsel and seeking the same relief. Notably neither the complaint nor the bill of particulars allege that these defendants have any vicarious liability.
In carefully analyzing plaintiffs' bill of particulars—as perhaps others have not—it is obvious that some of the assertions concerning the medical facility defendants such as the failure to obtain specialist consultations “when he knew ... [of the] consequences of his inability [to have done so]” clearly do not pertain to these defendants while allegations such as having “improperly credentialed health care providers ...” does apply. These medical facility defendants are not required, however, to hazard a dissection in order to determine which allegation applies to which one of them. Plaintiffs' inattentive reliance upon a cut and paste technique for preparing discovery replies is no substitute for complying with the CPLR. To that extent—and only concerning Champlain Valley Physician's Hospital Medical Center, Neurology of CVPH and the Champlain Valley Pulmonary Associates—the Court does strike the plaintiffs' bill of particulars at paragraphs 10, 12, and 13 and conditionally orders preclusion of plaintiffs' claims against these defendants unless plaintiffs serve a proper bill of particulars responsive to these enumerated paragraphs within thirty days of receipt of this decision and order with notice of entry.
Therefore, having considered the Affirmation of Walter L. Williams, Esq. dated April 13, 2016 with exhibits “A” through “H” attached thereto, submitted in support of the motion; the Affirmation of Paul G. Lyons, Esq, dated May 13, 2016 with Exhibits “A” through “D” attached thereto, submitted in opposition to the motion, and the Reply Affirmation of Walter L. Williams, Esq. dated May 20, 2016 it is hereby
ORDERED that the motion of defendants Stoyan Grakov, M.D., Boris Y. Chulpayev, M.D. and Vladimir Sabayev, M.D. to strike paragraphs 8, 9, and 11, is denied, and it is further
ORDERED that the motion of Champlain Valley Physician's Hospital Medical Center, Neurology of CVPH and the Champlain Valley Pulmonary Associates to strike paragraphs 8, 9, and 11 is also denied, and it is further
ORDERED that the motion of Champlain Valley Physician's Hospital Medical Center, Neurology of CVPH and the Champlain Valley Pulmonary Associates to strike paragraphs 10, 12, and 13 is granted, with costs, and it is further
ORDERED that plaintiffs' claims against Champlain Valley Physician's Hospital Medical Center, Neurology of CVPH, and the Champlain Valley Pulmonary Associates are conditionally precluded, unless plaintiffs serve a proper bill of particulars responsive to paragraphs 10, 12, and 13 within thirty days of receipt of this decision and order with notice of entry, and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated April 13, 2016 and the submissions enumerated above. Counsel for the moving defendants is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.