Opinion
February 11, 1999
Appeal from the Supreme Court (Malone, Jr., J.).
Following her birth on June 29, 1987, plaintiff Elizabeth M. Felock (hereinafter the infant) was hospitalized at defendant Albany Medical Center Hospital (hereinafter defendant) until October 16, 1987. During her hospitalization, the infant allegedly suffered burns to certain areas of her skin where electrodes had been placed. In June 1997, the infant's mother commenced this medical malpractice action on behalf of the infant and herself against defendant and defendant Albany Medical College. Following joinder of issue, defendants served plaintiffs with a demand for a bill of particulars and plaintiffs, in turn, served defendants with a notice of discovery and inspection.
Thereafter, plaintiffs served the verified bill of particulars and defendants produced the documentation requested in the notice of discovery and inspection. Defendants objected to the verified bill of particulars arguing that the responses to certain questions were not sufficiently particular. Plaintiffs advised defendants that their ability, to respond was severely hampered by defendants' failure to produce a complete set of hospital records which included copies of the nursing notes. In addition, plaintiffs objected to defendants' responses to the notice of discovery and inspection on the basis that the nursing notes were omitted. Plaintiffs subsequently served a notice to admit requesting confirmation that defendants' were not in possession of the nursing notes. In their response, defendants represented that "[t]he hospital has a policy for maintaining records and, presumably, is in possession of the nursing notes for the 1987 hospitalization regarding [the infant]". Defendants further stated that "[t]he hospital does admit that, at this point in time, it has been unable to locate those records notwithstanding the fact that a search therefor has been made".
In January 1998, defendants moved pursuant to CPLR 3042 and 3126 N.Y.C.P.L.R. to strike certain paragraphs of the verified bill of particulars on the ground that they were not sufficiently particular or were overly broad. Plaintiffs opposed the motion and cross-moved pursuant to CPLR 3124 and 3126 N.Y.C.P.L.R. for sanctions against defendants based upon the failure to produce a complete set of medical records due to the absence of the nursing notes. Supreme Court denied defendants' motion and conditionally granted plaintiffs' cross motion by ordering that defendants produce the nursing notes within 90 days or be precluded from offering any evidence regarding the material contained therein. Defendants appeal.
We affirm. "'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, quoting Twiddy v. Standard Mar. Transp. Servs., 162 A.D.2d 264, 265; see, MacDormand v. Blumenberg, 182 A.D.2d 991, 992). "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, quoting Miccarelli v. Fleiss, 219 A.D.2d 469, 470). They need not, however, provide evidentiary material or information to be gleaned from expert testimony (see, Liddell v. Cree, 233 A.D.2d 593, 594; Heyward v. Ellenville Community Hosp., 215 A.D.2d 967). Notably, in a medical malpractice action, as in any 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, quoting CPLR 3043 [a] [3]; see, Coughlin v. Festin, 53 A.D.2d 800).
Defendants objected to paragraphs 3 (a), (b), (c), (d), (e), (f), (k), (n), (u) and (ee), and paragraphs 10, 11, 21, 26 and 27 of the verified bill of particulars. Paragraphs 3 (a) through (f), (k), (n), (u) and (ee) of the demand requested plaintiffs to specify the acts and/or omissions constituting negligence and malpractice allegedly committed by defendants. The responses convey the general manner in which it is alleged that harm was caused to the infant. In particular, plaintiffs alleged, inter alia, that defendants failed to keep appropriate medical records and record physical findings properly. They further alleged that defendants did not possess the requisite medical knowledge involved in the treatment of the infant's skin nor properly supervise hospital employees to adequately monitor the infant. The foregoing allegations were sufficient and plaintiffs were not required to provide further evidentiary detail.
Paragraphs 10 and 11 of the demand requested plaintiffs to specify whether medications were improperly administered or whether defective equipment was used in the care and treatment of the infant. In their responses, plaintiffs stated that they did not have present knowledge of such facts but believe the information would be disclosed during further discovery. Given that the information requested in these paragraphs by defendants is likely contained in the nursing notes not yet produced, we find the responses adequate.
Paragraphs 21, 26 and 27 of the demand request plaintiffs to provide information concerning the infant's loss of earning capacity, special damages and medical expenses incurred as a result of the alleged injuries. Plaintiffs state that they do not presently have information in regard to these matters. Plaintiffs may provide this information at a latter time through a supplemental bill of particulars (see, Miccarelli v. Fleiss, supra, at 470) as long as it is done on a timely basis. Consequently, these paragraphs also need not be stricken.
In view of the foregoing, we conclude that Supreme Court properly denied defendant's motion to strike the above paragraphs of the verified bill of particulars. We further find that Supreme Court did not abuse its discretion in ordering defendants to produce the requested nursing notes or be precluded from offering evidence pertaining to information contained therein at trial. Notably, defendants have a legal duty to keep and maintain the infant's medical records (see, 10 NYCRR 405.10 [a] [3]) and have not provided plaintiffs with a conclusive answer as to whether the subject nursing notes are in their possession (compare, Ashline v. Kestner Engrs., 219 A.D.2d 788). Under these particular circumstances, the issuance of the conditional order of preclusion was appropriate. Contrary to defendants' claim, we do not find the order unduly ambiguous and note that Supreme Court will determine the admissibility of particular evidence as it is offered at trial.
Peters, Spain, Carpinello and Graffeo, JJ., concur.