Opinion
527203 527223 527225 527227 527228 527229
05-02-2019
Judy STODDARD, as Administrator of the Estate of Cherri A. Stoddard, Deceased, Appellant, v. NEW YORK ONCOLOGY HEMATOLOGY, P.C., et al., Respondents, et al., Defendants.
Powers & Santola, LLP, Albany (Kelly C. Wolford of counsel), for appellant. Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert A. Rausch of counsel), for New York Oncology Hematology, P.C. and others, respondents. O'Connor, O'Connor, Bresee & First, PC, Albany (Hilda R. Marinello of counsel), for Mikhail Chilingaryan, respondent. Burke, Scolamiero & Hurd, LLP, Albany (Jessica L. Darrow of counsel), for Vanessa Denning and another, respondents. Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Daisy F. Paglia of counsel), for Christopher M. Hessick, respondent. Napierski, VanDenburgh, Napierski & O'Connor, LLP, Albany (Diane Lufkin Schilling of counsel), for Joel E. Moses, respondent. Thorn, Gershon, Tymann and Bonanni, LLP, Albany (Kelly A. Herczeg of counsel), for James Puleo Jr., respondent.
Powers & Santola, LLP, Albany (Kelly C. Wolford of counsel), for appellant.
Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert A. Rausch of counsel), for New York Oncology Hematology, P.C. and others, respondents.
O'Connor, O'Connor, Bresee & First, PC, Albany (Hilda R. Marinello of counsel), for Mikhail Chilingaryan, respondent.
Burke, Scolamiero & Hurd, LLP, Albany (Jessica L. Darrow of counsel), for Vanessa Denning and another, respondents.
Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Daisy F. Paglia of counsel), for Christopher M. Hessick, respondent.
Napierski, VanDenburgh, Napierski & O'Connor, LLP, Albany (Diane Lufkin Schilling of counsel), for Joel E. Moses, respondent.
Thorn, Gershon, Tymann and Bonanni, LLP, Albany (Kelly A. Herczeg of counsel), for James Puleo Jr., respondent.
Before: Clark, J.P., Mulvey, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
Mulvey, J. Appeals from six orders of the Supreme Court (McNally Jr., J.), entered August 15, 2018 in Rensselaer County, which, among other things, partially granted certain defendants' motions for a conditional order of preclusion. In March 2014, Cherri A. Stoddard (hereinafter decedent), who had been diagnosed with colon cancer, became a patient of defendant New York Oncology Hematology, P.C. (hereinafter NYOH) and defendant Lawrence Garbo. They prescribed continuous intravenous chemotherapy treatment known as FOLFOX 6, which included a dose of the drug fluorouracil (hereinafter 5–FU). Prior to beginning the treatment, decedent was informed that if she had a gene mutation known as dihydropyridimine dehydrogenase (hereinafter DPD) deficiency, she should not have the FOLFOX 6 treatment because that mutation can cause a toxic buildup of 5–FU. Decedent was not aware of whether she had a DPD deficiency and apparently was not informed that there was a laboratory test available to detect it. After the treatment began, decedent experienced side effects, went to the emergency department of defendant Memorial Hospital, and was admitted and received treatment there for 13 days before being transferred to another hospital, where she later died.
Plaintiff, as administrator of decedent's estate, commenced this action alleging, as amended and as relevant here, medical malpractice and wrongful death against a hospital, two medical practices and 12 physicians. After receiving demands, plaintiff served each defendant with a verified bill of particulars. Following an inability to resolve defendants' objections to the bills of particulars, most of the defendants moved for conditional orders striking certain portions of the bills of particulars and precluding plaintiff from introducing evidence related to those matters unless plaintiff served sufficiently detailed amended bills of particulars. Supreme Court addressed defendants' motions in six orders, finding, with respect to each moving defendant, that certain of plaintiff's responses were insufficient and that evidence of matters related to those responses would be precluded unless plaintiff served amended bills of particulars within 30 days. Plaintiff appeals from the court's six orders. We affirm.
The term defendants will hereinafter refer to all defendants except Naeem Ahmed, Memorial Hospital and St. Peter's Health Partners Medical Associates, P.C., who were not involved in the relevant motion practice and are not involved in this appeal.
"The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial. To that end, a bill of particulars must clearly detail the specific acts of negligence attributed to each defendant, and the use of phrases such as ‘including but not limited to’ or ‘among other things’ ... plainly are improper as they destroy its most essential functions" ( Myers v. Community Gen. Hosp. of Sullivan County , 51 A.D.3d 1359, 1360, 859 N.Y.S.2d 753 [2008] [internal quotation marks, brackets and citations omitted]; see Neissel v. Rensselaer Polytechnic Inst. , 30 A.D.3d 881, 881–882, 818 N.Y.S.2d 627 [2006] ; Hayes v. Kearney , 237 A.D.2d 769, 770, 655 N.Y.S.2d 170 [1997] ). "[E]ach defendant is entitled to a bill of particulars that narrows the issues sufficiently to permit a reasonable defense" ( Hayes v. Kearney , 237 A.D.2d at 770, 655 N.Y.S.2d 170 [internal quotation marks and citation omitted] ), and responses "must clearly detail the specific acts of negligence attributed to each defendant" ( id. at 769, 655 N.Y.S.2d 170 [internal quotation marks and citation omitted]; see Felock v. Albany Med. Ctr. Hosp. , 258 A.D.2d 772, 773, 685 N.Y.S.2d 844 [1999] ). Trial courts have broad discretion to determine whether a party has complied with discovery demands or provided sufficient information in a bill of particulars (see Graves v. County of Albany , 278 A.D.2d 578, 578, 717 N.Y.S.2d 420 [2000] ).
As relevant here, defendants' demands required plaintiff to detail "[e]ach and every act of omission and commission constituting the alleged negligence and medical malpractice with which the plaintiff charges [the answering defendant]." Plaintiff responded to each defendant that he, she or it was negligent by: "A. Failing to properly diagnose [decedent's] DPD deficiency and the effects thereof in a timely manner; B. Failing to properly diagnose [decedent's] 5–FU toxicity condition and the effects thereof in a timely manner; C. Failing to properly treat [decedent's] 5–FU toxicity condition and the effects thereof in a timely and appropriate manner." Supreme Court did not abuse its discretion in concluding that the language "and the effects thereof," without more specificity, rendered the responses vague and insufficiently informative (see Myers v. Community Gen. Hosp. of Sullivan County , 51 A.D.3d at 1360, 859 N.Y.S.2d 753 ; Hayes v. Kearney , 237 A.D.2d at 770, 655 N.Y.S.2d 170 ; Morris v. Fein , 177 A.D.2d 915, 916, 576 N.Y.S.2d 673 [1991] ).
Moreover, although, "in a medical malpractice action, as in any action for personal injuries, the bill of particulars requires only a general statement of the acts or omissions constituting the negligence claimed" ( Felock v. Albany Med. Ctr. Hosp. , 258 A.D.2d at 773, 685 N.Y.S.2d 844 [internal quotation marks, brackets and citation omitted]; see CPLR 3043[a][3] ; Rockefeller v. Chul Hwang , 106 A.D.2d 817, 818, 484 N.Y.S.2d 206 [1984] ), responses will be deemed insufficient where there are several defendants and the plaintiff serves bills of particulars with "essentially identical" responses "even though it seems obvious that the role[s] of the [several] defendants differed" ( Batson v. La Guardia Hosp. , 194 A.D.2d 705, 706, 600 N.Y.S.2d 110 [1993] ; see Sealy v. Uy , 132 A.D.3d 839, 840, 18 N.Y.S.3d 160 [2015] ; Brusco v. St. Clare's Hosp. & Health Ctr. , 128 A.D.2d 390, 391, 512 N.Y.S.2d 675 [1987], appeal dismissed 70 N.Y.2d 692, 518 N.Y.S.2d 1027, 512 N.E.2d 553 [1987], lv denied 70 N.Y.2d 606, 519 N.Y.S.2d 1030, 514 N.E.2d 388 [1987] ; Brynes v. New York Hosp. , 91 A.D.2d 907, 907, 457 N.Y.S.2d 531 [1983] ; see also Kanaly v. DeMartino , 162 A.D.3d 142, 147–148 [2018] ). Defendants here practice in discrete medical specialties and played varied roles by providing treatment for certain of decedent's complaints at different times during her hospitalization. Because plaintiff "provided general and nonspecific responses regarding the negligence of all defendants rather than particularizing the acts or omissions each is alleged to have committed," we cannot conclude that Supreme Court erred in holding that plaintiff's responses were insufficient ( Neissel v. Rensselaer Polytechnic Inst. , 30 A.D.3d at 882, 818 N.Y.S.2d 627 ; see Miccarelli v. Fleiss , 219 A.D.2d 469, 470, 631 N.Y.S.2d 159 [1995] ; see also Kanaly v. DeMartino , 162 A.D.3d at 147–148, 77 N.Y.S.3d 234 ). Similarly, plaintiff must provide more specificity in her responses to demands where she merely referred back to these deficient responses (see Hayes v. Kearney , 237 A.D.2d at 770, 655 N.Y.S.2d 170 ). Accordingly, Supreme Court did not abuse its discretion in ordering preclusion unless plaintiff provides more specificity to some of her responses in her bills of particulars.
Supreme Court's order addressing the motion of NYOH and related defendants is inconsistent in this regard. We deem the portion of the order's decretal paragraphs stating that the motion is denied with respect to paragraphs 6 and 9–14 of the bills of particulars to be in error, as it is contradicted not only by the body of that order but also by the court's orders deciding the other defendants' motions in regard to similar responses.
Clark, J.P., Aarons and Rumsey, JJ., concur.
ORDERED that the orders are affirmed, with one bill of costs.