Hawkes v. Mount Sinai Hospital

75 A.D.2d 509, 426 N.Y.S.2d 745, 1980 N.Y. App. Div. LEXIS 10891

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 1980
• Status: Published

Opinions

Order of the Supreme Court, New York County, entered November 27, 1979 (Appeal No. 7521N), denying plaintiff’s motion to vacate separate demands for bills of particulars modified, on the law, on the facts and in the exercise of discretion, to the extent of vacating Items Nos. 8(d) and 8(e) of the demands and, as thus modified, affirmed, without costs. Order of the Supreme Court, New York County, entered November 16, 1979 (Appeal No. 7522N), denying plaintiff’s motion to vacate defendants’ demands for authorizations and for discovery and inspection modified, on the law and on the facts, to the extent of vacating the demand for authorizations dated September 25, 1979, without prejudice to a renewal of such demand upon a showing of relevancy and materiality, and otherwise affirmed, without costs. In this medical malpractice action defendants made separate demands for bills of particulars. They also served a notice to discover and inspect dated September 19, 1979 and two demands, one dated September 19, 1979, for authorization to inspect the records of Lenox Hill Hospital and one dated September 25,1979, seeking the right to examine all of plaintiffs medical records, without limitation of time and with no showing of relevancy or materiality. On this appeal defendant has withdrawn its demand for certain items contained in its demands for bills of particulars. Of the items remaining, we find Items Nos. 8(d) and 8(e) overly broad in scope. Accordingly, we delete them. Our dissenting brethren would also strike Items Nos. 5 and 6, which deal with accepted medical practice and the manner in which defendants are alleged to have deviated therefrom. Since these elements will be in issue at the trial, we think that defendants are entitled to narrow the issues with respect thereto. As to the demand for authorizations dated September 25, 1979, we are all in agreement that it must be vacated. While the nature of the malpractice claimed (the administration of sülfa drugs to which plaintiff is alleged to be allergic) is such that defendants are entitled to a wider sweep of discovery than ordinarily would be granted, there must be some showing that the documents sought are material and relevant. Here, there has been no such showing. In the classic sense it is a "fishing expedition” prompted by the hope that something may be discovered which will be helpful. So amorphous a predicate furnishes no basis for discovery. Concur—Birns, J. P., Sullivan and Bloom, JJ.