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. 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.
0 Comments
Leave a Reply. |