Hawkes v. Mount Sinai Hospital

Sandler and Carro, JJ.,

dissent in a memorandum by Sandler, J., as to Appeal No. 7521N, as follows: A disagreement with regard to items in a demand for a bill of particulars does not ordinarily justify a dissenting opinion, and arguably this case is no exception. However, the items at issue here seem to me to represent a significant misuse of the function intended to be served by bills of particulars and one that apparently has become widespread in medical malpractice actions. Moreover, I do not think we should pass over without comment the fact that defendants here submitted form demands embracing items that had no conceivable relationship to this action and which have been withdrawn belatedly on this appeal "in an effort to narrow the issues” although approved at Special Term. The complainant alleges, in substance, that on January 1, 1979, plaintiff went to the emergency room of defendant hospital; that plaintiff at all relevant times was allergic to drugs containing quantities of sulfa; that the defendant doctor negligently prescribed medication containing quantities of sulfa to plaintiff, although he "knew”, or "with the exercise of reasonable care, should have known, that plaintiff was allergic to such medication and that plaintiff would be caused to be injured thereby.” CPLR 3043, describing the particulars that may be required in personal injury actions, includes, as here pertinent, in paragraph (3) of subdivision (a): "General statement of the acts or omissions constituting the negligence claimed.” By any standard, the allegations in this complaint more than satisfactorily fulfill that requirement. On the issue of liability, the complaint is clear and specific and leaves no room for doubt as to the claim of culpability advanced. At issue here are Items Nos. 5 and 6 of the demands. They request the following: "5. A statement of the accepted medical practices, customs and medical standards which it is claimed were violated and departed from by the answering *511defendants) herein. 6. State the manner in which the answering defendants) departed from each of the above accepted medical practices, customs and standards.” I do not perceive in these items a purpose appropriate to the function intended to be served by a bill of particulars. They do not in any way embody a request for "acts or omissions constituting the negligence claimed.” Indeed, they do not seek factual information at all. Their apparent purpose is to require plaintiffs lawyer at the beginning of the litigation to translate the simple and clear allegations of fact set forth in the complaint into some kind of formal, technical terminology in the hope of eliciting a blunder in phrasing that might yield tactical advantages at trial. Such efforts should not be sanctioned. As to Item No. 6, in addition to what has been said above, it is immediately apparent that the complaint in fact fully presents the precise information purportedly sought. The issues presented here were authoritatively addressed in Cirelli v Victory Mem. Hosp. (45 AD2d 856) in the following words: "In our opinion 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’ (CPLR 3043, subd. [a], par. [3]). We apprehend no beneficial reason to put the plaintiff in a malpractice action (who most often is less likely than the defendant to have knowledge of proper 'surgical procedures’, 'medicines’ and 'tests’) to a greater burden than plaintiffs in other types of personal injury actions.” Contrary to defendants’ contention on this appeal, the opinion of this court in Nelson v New York Univ. Med. Center (51 AD2d 352) does not embody a different approach. In Nelson (p 354), this court sanctioned items comparable to those in issue here only because of the conclusion that the complaints there involved "are so general and uninformative as to raise a serious question as to whether they are designed to conceal rather than to inform.” The court made quite clear (p 354) its basic agreement with Cirelli where, as here, the complaint is appropriately informative and, in fact, sets forth a "general statement of the acts or omissions constituting the negligence claimed.” For the reasons stated, I would further modify the order of the Supreme Court, New York County, entered November 27,1979 to delete Items Nos. 5 and 6 of the demands.