Wyckoff Heights Medical Center, 84 A.D.3d 487 (1st Dept. The limitations imposed by the Bill of Particulars may also arise in the context of a summary judgment motion as it did in Suits v. Where the new claims are based upon facts known to plaintiff’s counsel since the inception of the case, but the new claims are not fairly discernable from the allegations of the complaint as amplified in the original Bill of Particulars, the court will find substantial prejudice to the defendant, requiring denial of the motion to amend. 2008), where the court expressed concern over the prejudice or surprise to the opposing party when the amendment was sought long after the case had been certified for trial. Queens Long Island Medical Group, P.C., 49 A.D.3d 827 (2d Dept. The reasoning behind these pretrial decisions is more fully detailed in Morris v. 2010), sustaining the denial of the motion to serve a second amended bill, and striking portions of the expert witness disclosure. The same court rendered a similar decision five years later in Balcom v. 2005), amendment of the Bill of Particulars will not be permitted where the plaintiff’s attorney does not provide a reasonable excuse for inordinate delay in making the required motion to amend.īecause the scope of the Bill of Particulars controls the admissible proof at trial, the Arguinzoni court struck the portion of the plaintiff’s expert witness responses which dealt with subject matter exceeding the allegations of the original Bill of Particulars. Parkway Hospital, 14 A.D.3d 633 (2d Dept. The entire course of discovery is thus defined by the statement of the claims in the Bill of Particulars, to the exclusion of the claims which are not contained therein.ĭepending on the timing and content of the subsequent amendment of the Bill of Particulars, significant prejudice may befall the defendant when the focus of the claim changes. When the court is called upon to resolve disputes over the appropriate bounds of discovery, it necessarily examines the Bill of Particulars and the parameters of the claim.
#New york bill of particulars how to#
The Bill of Particulars guides defense counsel in determining what discovery to request, what investigation to obtain, what witnesses to depose, and how to approach those depositions. Based on the same reasoning, the court in Linker, supra, sustained the striking of all references to intentional or willful acts from the amended Bill of Particulars in the absence of a claim based upon intentional acts.Ī considerable amount of time and effort may be expended in discovery proceedings, all of which is directed by the content of the Bill of Particulars served prior to the onset of discovery. 1994), an amendment of the complaint, rather than the Bill of Particulars, was required to add an informed consent claim. 2020).Īt the outset, a medical malpractice action is a negligence case, and the Bill of Particulars must particularize the claimed negligence rather than adding new claims.
#New york bill of particulars update#
While the Bill of Particulars may be supplemented to update the claims of damages, amendments to the Bill of Particulars which change the claims of liability or damages are available under conditions which become progressively narrower as the case proceeds through discovery and very limited after it is added to the trial calendar. County of Westchester, 214 A.D.2d 652 (2d Dept. The settled purpose of the Bill of Particulars is to prevent surprise at trial by providing a guide to discovery in a detailed picture of the claims which will be tried. The Bill of Particulars serves as a valuable guide to avoid resultant prejudice, and the courts are willing to protect the defendant from the belated imposition of new claims and new theories of recovery provided that the request is timely and properly articulated.
Unless defense counsel pays careful attention to the shifts caused by this evolution, the process may create a changed paradigm for the evaluation of the quality of care rendered. Substantial prejudice may result from the new focus brought to bear upon complex treatment, with a changed perspective on the legal obligations of health care provider to patient. The cases have reached a point at which there is a more careful synthesis of the facts with the conclusions they support.
When medical malpractice cases come to trial, the tendency is for claims to have evolved or even changed altogether.
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