John L.A. Lyddane

In preparing to defend the medical malpractice case at trial, it is usually not the extent of injury which creates the most uncertainty for the defense. The adverse outcome of medical treatment is apparent from the records of treatment. What is less obvious and requires close attention is how it will be claimed that the defendants violated the standard of care in such a way as to cause the patient’s injury. In a case brought to trial 10 or more years after the alleged acts of negligence, it is especially important that the claims to be tried have been identified, investigated, and subject to complete discovery. It is the responsibility of defense counsel to see that claims as to which there has been insufficient notice and an inadequate opportunity to defend are not advanced at trial.

The purpose of statutes of limitations is to protect potential defendants from the prosecution of claims where imperfect recollection, death, unavailability of an important witness, or the absence of other evidence interferes with the ability to establish the truth. Riddlesbarger v. Hartford Ins. Co., 74 U.S. 386, 390 (1869). The law presumes that once the statutory period has expired, evidence has been lost, memories have faded, and witnesses have disappeared. Connell v. Hayden, 83 A.D.2d 30, 41 (2d Dept. 1981). In the current environment, where defendant hospital systems employ many of the patient’s caregivers and the courts permit the vaguest of bills of particulars, the challenge to defense counsel is to define the claims and the involved employees at the outset in such a way as to investigate and defend against what will be the issues raised at trial.

Both the legislature and the courts have recognized that each defendant must be protected from the late interposition of new claims. There is a marked distinction between a supplemental bill of particulars which updates continuing special damages and disability previously claimed and an amended bill of particulars which changes or adds a cause of action or a claim or injury not previously asserted. CPLR §3043(b) and the statute of limitations argument have both been found to support the court’s denial of late claims being added to existing litigation. See Boland v. Koppelman, 251 A.D.2d 176 (1st Dept. 1998); A.A.A.A.A.R. Construction v. Village of Brewster, 149 A.D.3d 1016 (2d Dept. 2017). Whether titled “supplemental” or “amended”, each addition to the bills of particulars requires analysis to determine whether it asserts a new or changed theory of recovery against which the statute of limitations has expired. Hustedt Chevrolet v. Jones, Little & Co., 129 A.D.3d 669 (2d Dept. 2015); Calamari v. Panos, 131 A.D.3d 1088 (2d Dept. 2015).

It is often the case that the focus and specifics of the liability claims in a medical malpractice claim will change over the lifetime of the case. It is up to defense counsel to seek meaningful particulars of the claim, investigate the facts, and determine what evidence and witnesses are available to support the defense. When the claims are appropriately particularized and the scope of investigation and discovery are thereby established, defense counsel is better oriented to recognize and resist the belated claim as it arises. Counsel for the plaintiff will not always move to amend the bill of particulars, raising the red flag for defense counsel to consider whether new claims are being added. The inability of the defendant to perform a prompt investigation of the actual claims has been found to prejudice the defense in as little as two years after the event, but unless defense counsel is prepared to demonstrate the prejudice which has befallen her client in the interim, the court may not be in a position to recognize that the defendant has been disadvantaged by the delay. See Pelaez v. City of N.Y., 79 A.D.3d 1115 (2d Dept. 2010).

Where plaintiff moved to amend the bill of particulars to assert a new theory of recovery, citing a newly retained expert witness who eleven years after the claim was in suit identified a new claim, the plaintiff did not succeed. The Appellate Division, Second Department denied the motion because defense counsel was able to demonstrate that the new theory would require a reorientation of the defense strategy. Markarian v. Hundert, 262 A.D.2d 369 (2d Dept. 1999). When counsel for the plaintiff changed the theory of his case in response to a summary judgment motion directed at the theory espoused in the bill of particulars, the Appellate Division, First Department sustained the dismissal. The court held that defense counsel was able to demonstrate that the new theory was articulated for the first time in response to the summary judgment motion. Atkins v. Beth Abraham Health Services, 133 A.D.3d 491 (1st Dept. 2015). When plaintiff’s counsel proposed a new theory in response to a summary judgment motion, and moved to amend the bill of particulars accordingly, both motions were decided against plaintiff. There the defense was able to demonstrate that it had been prejudiced by the late assertion of what was a new theory of liability. Kielany B. v. City of New York, 122 A.D.3d 424 (1st Dept. 2014). The same result was obtained in Golubov v. Wolfson, 22 A.D.3d 635 (2d Dept. 2005) when the new theory advanced against the defendant was limited to alleged vicarious liability for another participant in the patient’s treatment.

The scope of the expert witness responses required by CPLR 3101(d) is distinct from the scope of the bill of particulars, but it is clear that the courts will not permit the attorney for the plaintiff to use the expert witness responses as a vehicle to add a new theory of liability which is not readily discernable from the allegations set forth in the bill of particulars. Campos v. Beth Israel Medical Center, 80 A.D.3d 642 (2d Dept. 2011). In Campos, the patient had been injured in a fall from her hospital bed and the lower court had denied the defendant’s motion to preclude new theories of recovery set forth in the 3101(d) response of counsel for the plaintiff. The defendant’s attorney was able to reverse the ruling on appeal demonstrating the prejudice of permitting the case to proceed upon “unpleaded allegations.” In a lengthier opinion, the same court sustained the striking of portions of the expert witness response of the plaintiff and the denial of a motion for leave to amend the bill of particulars at a point prior to trial. Morris v. Queens Long Island Medical Group, P.C., 49 A.D.3d 827 (2d Dept. 2008). The court found that the substantial prejudice to the defense required it to exercise its discretion in favor of the denial of the motion for leave to amend the bill of particulars.

It is frequently argued that there would be no prejudice to the defense in allowing the new theories, because by the time the issue is presented to the court, the defense attorneys have secured experts who will adequately defend the new theories as evidenced by the expert witness responses served on behalf of those defense experts. Although it was decided long before New York required expert witness responses, the Appellate Division, First Department faced this very issue as a divided court in Forman v. Davidson, 74 A.D.2d 505 (1st Dept. 1980). Whereas the dissent would have allowed the belated amendment to the bill of particulars at trial, citing the fact that the defendant skillfully defended against the claim, the majority found that the routine preparation of a good defense attorney did not vitiate the manifest unfairness of requiring the defendant to litigate the belated claim.

Conclusion

Defense counsel must begin at an early point to identify the claims which will ultimately be tried, and to secure the documents and witnesses that will be needed to defend against those claims. The records of treatment will almost always be preserved but ancillary records, such as schedules which identify witnesses not mentioned in the records of treatment, will not always remain available. If the witnesses and documents necessary to defend the claims stated in the bills of particulars are identified and investigated, it will be more obvious when changes such as death or relocation of witnesses work against the defense. The alert defense attorney will then be better able to identify the prejudice to her client, and contest the addition of claims not fairly inferable from the bill of particulars, regardless of the context in which they arise. Once the record before the court documents the prejudice to the defendant, the court’s discretion will be directed against the belated claim.

John L.A. Lyddane is a partner at Dorf & Nelson who has extensive experience in jury trials of technically complicated liability matters, including professional liability cases and construction-related lawsuits.