Case Summary: McKenzie v. St. Elizabeth Hospital, App. Div., 4th Dept., May 15, 1981

Factual and Procedural Background

This is an action for wrongful death alleged to have been caused by the medical malpractice of defendant hospital and a codefendant physician. Plaintiff Oscar McKenzie, as administrator of the estate and guardian for an infant, appealed from an order of the Oneida Supreme Court denying his motion to vacate or modify the defendant hospital's demand for a bill of particulars under CPLR 3042, subd (a).

Legal Issues Presented

Whether the plaintiff's complaint adequately sets forth a "general statement of the acts or omissions constituting the negligence claimed" under CPLR 3043(a)(3), such that the hospital's demand for particulars should be sustained or vacated.
Whether particular demands that seek usual and accepted standards or what advice/diagnosis/treatment should have been given are improper because they call for expert testimony and therefore constitute evidentiary material.
Whether demands seeking information concerning reimbursement from collateral sources are proper subjects for a bill of particulars (CPLR 4010).
Whether the plaintiff must furnish particulars "regarding the conduct of each defendant" where the complaint does not allege that the hospital is vicariously liable for the physician's alleged negligence.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Randall v Pech, 51 A.D.2d 864	Supports informing a defendant hospital of the claimed acts of its negligence when the complaint does not adequately state a general statement of acts or omissions (CPLR 3043[a][3]).	Court held that, because the complaint was inadequate, the hospital should be informed of the claimed acts of its negligence in accordance with the demand.
McDermott v Manhattan Eye, Ear Throat Hosp., 15 N.Y.2d 20	Holds that requests for particularization of usual and accepted standards and what advice/diagnosis/treatment should have been given call for expert testimony and are evidentiary.	Court treated demands seeking such particulars as improper evidentiary demands and vacated specified demands (nos. 4, 6, 8, 13 and 14).
Patterson v Jewish Hosp. Med. Center of Brooklyn, 94 Misc.2d 680, affd 65 A.D.2d 553	Same principle as McDermott: particularization of standards or what should have been done is expert, evidentiary material.	Reinforced the court's conclusion that certain numbered demands were improper and should be vacated.
Hawkes v Mount Sinai Hosp., 75 A.D.2d 509	Cited by way of comparison concerning the evidentiary nature of certain demands.	Served as a supporting citation (cf.) for treating specified demands as evidentiary and improper.
Corter v Luck, 96 Misc.2d 960, 961	Supports that information concerning reimbursement from collateral sources may be the subject of a bill of particulars.	Court held there was no reason the collateral source reimbursement information could not be demanded and directed plaintiff to respond to demands numbered 23 and 24.

Court's Reasoning and Analysis

The court found the complaint deficient under CPLR 3043(a)(3) because it did not adequately state the acts or omissions constituting the negligence claimed; accordingly, the hospital was entitled to be informed of the claimed acts of negligence (citing Randall v Pech). The court permitted plaintiff to state lack of present knowledge and to serve an amended bill upon discovery (CPLR 3042[g]).

The court determined the hospital's demand was overbroad where it sought evidentiary material—specifically, demands seeking particularization of usual and accepted standards and what advice/diagnosis/treatment should have been given—which call for expert testimony and therefore are improper (citing McDermott, Patterson; cf. Hawkes). As a result, demands numbered 4, 6, 8, 13 and 14 were vacated.

Demands numbered 23 and 24 sought information concerning reimbursement from collateral sources; relying on CPLR 4010 and Corter v Luck, the court found these matters appropriately the subject of a bill of particulars and directed plaintiff to respond.

Many demands required particulars "regarding the conduct of 'each defendant'." Because the complaint did not allege that the hospital was vicariously liable for the physician's alleged negligence, the court directed plaintiff to furnish particulars only as to the hospital. The hospital, however, may demand to know whether plaintiff claims vicarious liability and, if so, the physician acts relied upon.

Regarding the timeliness dispute, the court noted that at this early stage of litigation it would be unreasonable to require plaintiff to supply particulars beyond those the court directed.

Holding and Implications

Order modified and, as modified, affirmed, without costs.

Direct effects on the parties:

Plaintiff must furnish a bill of particulars informing the hospital of the claimed acts of its negligence; if lacking present knowledge, plaintiff may so state and later serve an amended bill pursuant to CPLR 3042(g).
Demands numbered 4, 6, 8, 13 and 14—seeking expert/evidentiary material about standards and what should have been done—are vacated as improper.
Demands numbered 23 and 24—seeking collateral-source reimbursement information—are proper subjects for a bill of particulars and plaintiff must respond.
Plaintiff must furnish particulars only as to the defendant hospital; the hospital may request clarification whether vicarious liability is alleged and, if so, the physician acts relied upon.

No broader precedent was announced beyond the application of existing CPLR provisions and cited authorities to the facts of this case.

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OSCAR McKENZIE, as Administrator of the Estate of DOROTHY McKENZIE, Deceased, and as Guardian for ANETHA McKENZIE, an Infant, Appellant, v. ST. ELIZABETH HOSPITAL, Respondent, et al., Defendant.

Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: In this action for wrongful death claimed to have been caused by the medical malpractice of defendant hospital and codefendant physician, plaintiff appeals from an order denying his motion to vacate or modify defendant hospital's demand for a bill of particulars (CPLR 3042, subd [a]). Since plaintiff's complaint does not adequately set forth a "General statement of the acts or omissions constituting the negligence claimed" (CPLR 3043, subd [a], par [3]), defendant hospital, in accordance with the demand, should be informed of the claimed acts of its negligence (Randall v Pech, 51 A.D.2d 864). If plaintiff lacks present knowledge of any element thereof, he may so state and, upon discovery, may serve an amended bill as of course (CPLR 3042, subd [g]). The demand for particulars is overbroad, however, in that it seeks evidentiary material (see Seigel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR, C3041.2, p 622). Those items which seek particularization of usual and accepted standards, as well as those demanding what advice, diagnosis or treatment should have been made or given, call for expert testimony and are purely evidentiary (McDermott v Manhattan Eye, Ear Throat Hosp., 15 N.Y.2d 20; Patterson v Jewish Hosp. Med. Center of Brooklyn, 94 Misc.2d 680, affd 65 A.D.2d 553; cf. Hawkes v Mount Sinai Hosp., 75 A.D.2d 509). Thus demands numbered 4, 6, 8, 13 and 14 are improper and must be vacated. Demands numbered 23 and 24 require information concerning reimbursement from collateral sources (see CPLR 4010). There is no reason why this information should not be the subject of a bill of particulars (see Corter v Luck, 96 Misc.2d 960, 961) and plaintiff should respond thereto. Demands numbered 1 through 3, 5, 7, 9 through 12, 16 through 19 and 29 require information regarding the conduct of "each defendant." The complaint does not allege that the defendant hospital is vicariously liable for the claimed negligence of the physician. Accordingly, plaintiff should furnish particulars only as to the defendant hospital which may, however, demand to know whether plaintiff claims that the hospital is vicariously liable and, if so, the acts of physician negligence upon which plaintiff's claim is based. Finally, we note with regard to the dispute as to the timeliness of plaintiff's motion that at this early stage of the litigation it would place an unreasonable burden upon plaintiff to supply particulars beyond those heretofore directed.

McKENZIE v. ST. ELIZABETH HOSPITAL