Dellaglio v. Paul

250 A.D.2d 806, 673 N.Y.S.2d 212, 1998 N.Y. App. Div. LEXIS 6044

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 26, 1998
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Kings County (Patterson, J.), dated June 24, 1997, as directed them to provide supplemental bills of particulars responding to items 13, 14, 18a, 18b, 27, and 28 in the demand for a bill of particulars served by the defendant Kingsboro Medical Group, P. C., and to items 6, 7, 9, 20, 21, 24, 25 in the demand for a bill of particulars served by the defendant Joseph Leon Paul, and (2) so much of an order of the same court dated October 27, 1997, as, in effect, upon reargument, adhered to the prior determination except for deleting the provision directing a response to item 9 of the defendant Joseph Leon Paul’s demand for a bill of particulars, and directing that the plaintiffs would be precluded from offering proof regarding those items to which they failed to respond.

Ordered that the appeal from the order dated June 24, 1997, is dismissed, as that order was superseded by the order dated October 27, 1997, made upon reargument; and it is further,

Ordered that the order dated October 27, 1997, is modified, on the law, by deleting therefrom the provisions directing the plaintiffs to respond to items 6, 7, and 21 of the demand of the defendant Joseph Leon Paul and items 13, 14, 18a, 18b, and 28 of the demand of the defendant Kingsboro Medical Group, P. C.; as so modified, the order is affirmed insofar as appealed from; and it is further,

Ordered that the plaintiffs are awarded one bill of costs.

With regard to items 6 and 7 in Paul’s demand, there is no need for the plaintiffs to set forth the manner in which the physician failed to act in accordance with good and accepted medical practice since a physician is chargeable with knowing those medically accepted standards applicable to the proper care and treatment of the plaintiff (see, Patterson v Jewish Hosp. & Med. Ctr., 94 Misc 2d 680, affd 65 AD2d 553). Further, the request for specific departures in a bill of particulars is evidentiary (see, Patterson v Jewish Hosp. & Med. Ctr., supra).

With regard to items 13, 14, 18a, and 18b in the demand of Kingsboro Medical Group, P. C. (hereinafter Kingsboro), the request for information regarding the performance of test or procedures including x-rays and radiographic studies was likewise evidentiary in nature (see, Patterson v Jewish Hosp. & Med. Ctr., supra).

Finally, the information sought in Paul’s demand 21 and Kingsboro’s demand 28 have already been provided by the plaintiffs in their verified bills of particulars. Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.