Monday, March 28, 2016

Theories of liability and supplemental bills of particular in a medical malpractice action.

Practice point:  Defendants made a prima facie showing, via expert opinion, that they did not depart from good and accepted medical practice in allowing plaintiff-mother to continue her pregnancy to term and inducing delivery in the 41st week, and that there was no causal connection between any alleged departure and the plaintiff-infant's condition. However, in opposing defendants' summary judgment motion, plaintiffs raised triable issues of fact, and the Appellate Division affirmed denial of defendants' motion. Plaintiffs did not assert a new theory of liability in their opposition papers. Plaintiffs' expert asserted only that the departures from good and accepted medical practice may have occurred as far back as the mother's 37th week of pregnancy, when she started showing signs of gestational hypertension, and while she was already under defendants' care.

Student note:  Although the initial bill of particulars stated the dates of the alleged malpractice]incorrectly, the supplemental bill made clear that the allegations related to the treatment of the mother before delivery.  In addition, the expert disclosure also clarified the dates in issue.

Case:  Destiny H. v. Bronx Lebanon Hosp., NY Slip Op 02033 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Leave to amend an answer.