When medical malpractice cases come to trial, the tendency is for claims to have evolved or even changed altogether. The cases have reached a point at which there is a more careful synthesis of the facts with the conclusions they support. 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.
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. 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.
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. Linker v. County of Westchester, 214 A.D.2d 652 (2d Dept. 1995). 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. Jeannette S. v. Williot, 179 A.D.3d 1479 (4th Dept. 2020).
At 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. In Jolly v. Russell, 203 A.D.2d 527 (2d Dept. 1994), an amendment of the complaint, rather than the Bill of Particulars, was required to add an informed consent claim. 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.
A 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. 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. 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. 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.
Depending 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. As may be seen in Arguinzoni v. Parkway Hospital, 14 A.D.3d 633 (2d Dept. 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.
Because 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. The same court rendered a similar decision five years later in Balcom v. Reither, 77 A.D.3d 863 (2d Dept. 2010), sustaining the denial of the motion to serve a second amended bill, and striking portions of the expert witness disclosure.
The reasoning behind these pretrial decisions is more fully detailed in Morris v. Queens Long Island Medical Group, P.C., 49 A.D.3d 827 (2d Dept. 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.
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.
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. Wyckoff Heights Medical Center, 84 A.D.3d 487 (1st Dept. 2011). The hospital in that case had moved to dismiss all claims made against it other than for its vicarious liability for the physician who initially treated the plaintiff in the emergency room and was separately represented. The court held that because each defendant is entitled to a Bill of Particulars which clearly details the specific acts of negligence attributed to it, and the Bill of Particulars as to Wyckoff only referred to acts of the ER physician, the direct claim against the hospital should be dismissed.
The issue also arises in the context of trial motions, as it did in Ryan v. St. Francis Hospital, 62 A.D.3d 857 (2d Dept. 2009), with the preclusion of the trial expert for the plaintiff whose contemplated testimony exceeded both the Bill of Particulars and the expert witness disclosure. The trial ended with a directed verdict, sustained on appeal.
The complaint was also dismissed in Thompson v. NYCHA, 212 A.D.2d 775 (2d Dept. 1995) in which the trial court submitted the case to the jury on a single theory which was not contained in the Bill of Particulars, resulting in a verdict in favor of the plaintiff. The appellate court added that even if counsel for the plaintiff had moved during the trial to amend the Bill of Particulars, it would have been an improvident exercise of discretion on the part of the trial court to allow the new theory of liability.
The control of the Bill of Particulars over the scope of the claims both limits the actions of the trial court and circumscribes the issues to be litigated by counsel. In D’Angelo v. D’Angelo, 109 A.D.2d 773 (2d Dept. 1985), the trial court’s confinement of the plaintiff to proof of the claims in the Bill of Particulars was sustained. However, the trial court’s resolution of the case on theories not raised in the Bill of Particulars and presented for the first time at trial was reversed by the appellate court because the trial judge’s exceeding the bounds of the Bill of Particulars was manifestly unfair and prejudiced the defendant’s ability to prepare for trial. There is no question that this principle extends as well to restricting the claims of damages to those stated in the original Bill of Particulars.
The court in Gray v. City of New York, 33 A.D.3d 857 (2d Dept. 2006) ruled that hospital records and expert testimony should have been stricken from the record by the trial judge on the motion of the defendant as the particular damages claim exceeded the scope of the Bill of Particulars. A new trial was ordered by the Appellate Division, citing its decision in Arguinzoni the preceding year.
The limitation of the claims to those stated in the original Bill of Particulars has even arisen between trials, where an evidentiary issue in a psychiatric wrongful death case required a retrial. The plaintiff in Karasik v. Bird, 104 A.D.2d 758 (1st Dept. 1984), sought to amend the Bill of Particulars before the second trial, eight years after it was initially served. The Appellate Division reversed the lower court’s decision granting the amendment, finding that the new claim was so at odds with the original claim of the plaintiff that he should be estopped from advancing it. The court found the injection of the new claim of malpractice, completely foreign to those previously disclosed and litigated, was unfair and highly prejudicial to the defense.
It is important to note that the decisions on confining the issues at trial to those articulated in the Bill of Particulars, and not permitting belated amendment to add new claims, speak of the presence of prejudice to the defendant without specifying exactly what constitutes prejudice. Perhaps this is because the cases have been prepared over the course of years on one theory or set of theories, and it is not known what investigation or discovery would have revealed if the new theory or claim had been present in the original Bill of Particulars.
Also important to observe is that the skill of defense counsel in dealing with a claim belatedly brought into the case does not eradicate the error in allowing the late amendment of the Bill of Particulars. The court in Forman v. Davidson, 74 A.D.2d 505 (1st Dept. 1980) stated this point well, in a case in which the original claim was negligent surgery, but during the cross examination of one of plaintiff’s witnesses at trial a theory involving negligent postoperative care emerged. In reversing the trial court and ordering a new trial, the Appellate Division held that “A trial is manifestly unfair when a party is suddenly called upon to defend on a theory belatedly brought into the case.” Id. at 506.
The prejudice of late changes to the claims is real, and it is difficult to articulate the defense which has not been developed. Rather than leaving the argument to chance, defense counsel would be well advised to provide as much insight to the lower court as possible as to what additional investigation, discovery, and preservation of the recollection of witnesses would have been available if the newly advanced claim had been stated in the original Bill of Particulars. Litigating within the confines of the Bill of Particulars is the key to producing a fair outcome; but showing that the error is prejudicial is critical as well.
This article is also on Law.com: The Bill of Particulars Is Your Guide