Barber v Franzon

[*1] Barber v Franzon 2016 NY Slip Op 51655(U) Decided on November 18, 2016 Supreme Court, Clinton County Muller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 18, 2016
Supreme Court, Clinton County

Tionna Barber and Michael Grems, Individually and as P/N/G of CG, an Infant, Plaintiffs,

against

Olor Franzon, M.D., Dane Larsen, M.D., and Advanced Women's Healthcare in Obstetrics & Gynecology, PLLC, Defendants.



2015-1530



For Plaintiff:

Powers & Santola, LLP, Albany (John K. Powers of counsel)

39 N Pearl Street, Suite 6, Albany, NY 12207

(518) 465-5995

For Defendants:

Maguire Cardona, P.C., Albany (Amanda Kuryluk of counsel)

The Sage Mansion, 16 Sage Estate, Albany, NY 12204

518-434-9807 and 518-562-3282
Robert J. Muller, J.

This is a medical malpractice action in which plaintiffs Tionna Barber and Michael Grems allege that, during Barber's pregnancy, labor and delivery of plaintiff CG in October 2013, defendants engaged in various culpable conduct that resulted in CG suffering brain damage. The parties were unable to resolve a disagreement about the specificity of some of the responses in plaintiffs' bill of particulars as well as whether Barber must provide a release of medical information regarding a prior pregnancy and birth from 2009. A conference was conducted with the Court and, when the issues remained unresolved, this motion by defendants ensued. Defendants seek, pursuant to CPLR 3042, 3124 and 3126, an order, among other things, compelling plaintiffs to supplement their responses to demands 4 and 5 in the bill of particulars, and requiring Barber to provide a medical release regarding her obstetrical and gynecological records from her 2009 pregnancy, labor and delivery.

Addressing first the bill of particulars issue, the Court has recently set forth in a medical [*2]malpractice case with a similar dispute the applicable law, as follows:

"'The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial'" (Hayes v. Kearney, 237 AD2d 769, 769 [1997], quoting Twiddy v Standard Mar. Transp. Servs., 162 AD2d 264, 265 [1990]; see MacDormand v Blumenberg, 182 AD2d 991, 992 [1992]). "'The responses to a demand for a bill must clearly detail the specific acts of negligence attributed to each defendant'" (Hayes v Kearney, 237 AD2d at 769, quoting Miccarelli v Fleiss, 219 AD2d 469, 470 [1995]). There is no distinction between a medical malpractice action or any other action for personal injuries. The bill of particulars "requires only a '[g]eneral statement of the acts or omissions constituting the negligence claimed'" (Rockefeller v Hwang, 106 AD2d 817, 818 [1984], quoting CPLR 3043[a][3]; see Coughlin v Festin, 53 AD2d 800, 800-801 [1976]; see also Felock v Albany Medical Center, 258 AD2d 772, 773 [1999]).

(Patrie v Camba, 52 Misc 3d 1204[A], at *3; 2016 NY Slip Op 50988[U], at *1 [Sup Ct 2016]).

The relevant demands (numbers 4 and 5) by defendants requested particularization of each act constituting negligence (number 4) and medical malpractice (number 5). Plaintiffs' bill of particulars and first supplemental bill of particulars set forth separate allegations as to all three defendants. In their bill of particulars, plaintiffs state that the negligence and malpractice of defendant Olof Franzon included: failing to deliver CG in a timely manner so as to prevent or significantly decrease the injuries sustained by CG; failing to properly monitor, assess and treat Barber's high risk pregnancy; failing to obtain a consultation from a specialist in maternal fetal medicine or to refer Barber to such a specialist; failing to admit Barber to the hospital for observation; failing to adequately monitor Barber and her fetus; failing to recognize that Barber's placenta was not functioning properly; failing to order appropriate ultrasound testing; and failing to schedule Barber for further evaluation before the morning of October 22, 2013. As for defendant Dane Larsen, plaintiffs allege a failure to deliver the infant in a timely manner so as to prevent or significantly decrease the injuries sustained by CG. Plaintiffs set forth the same allegations asserted against Franzon with respect to defendant Advanced Women's Healthcare in Obstetrics & Gynecology, PLLC. Plaintiffs' responses amplified the allegations in the complaint and sufficiently set forth specific assertions as to each defendant. The Court is unpersuaded that plaintiffs' responses fail to satisfy the statutory purpose of a bill of particulars.

Defendants' effort to obtain Barber's medical records from 2009 will be addressed next. As a general principle, "[i]t is established that disclosure provisions are to be liberally construed and a trial court is afforded broad discretion in managing disclosure" (Am. Assn. of Bioanalysts v NY State Dept. of Health, 12 AD3d 868, 869 [2004]; see Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [2000]; Perez v Fleischer, 122 AD3d 1157, 1157-1158 [2014], lv dismissed 25 NY3d 985 [2015]). In medical malpractice cases involving injuries to an infant at birth, there is a line of cases holding that:

[A] plaintiff mother does not waive her physician-patient privilege with respect to her own medical history, other than for that period when the infant was in utero, merely by acting in a representative capacity in an action in which the infant is the real party in interest (see Dalley v LaGuardia Hosp., 130 AD2d 543 [1987]; Herbst v Bruhn, 106 AD2d [1984]; Scharlack v Richmond Mem. Hosp., 102 AD2d 886 [1984]). In such cases, the mother will be deemed to have waived her privilege when, by her conduct, such [*3]as by answering questions relating to her medical history during an examination before trial, she has affirmatively placed her own medical history into issue (see De Silva v Rosenberg, 129 AD2d 609 [1987]). Even then, however, disclosure is limited to records covering the period when the infant was in utero, unless evidence is presented that the mother's medical history covering other periods is relevant (see Matter of New York County DES Litig., 168 AD2d 44 [1991]; Sibley v Hayes 73 Corp., 126 AD2d 629 [1987]).

(Scalone v Phelps Memorial Hosp. Center, 184 AD2d 65, 72-73 [1992]; see generally Bard and Gaier, NY Medical Malpractice §§ 16:94 - 16:101).

Here, although plaintiffs have alleged an individual cause of action for loss of services and expenses incurred as a result of the CG's injuries, they are not seeking damages for physical injuries to Barber. Nonetheless, defendants seek the medical release for Barber's 2009 pregnancy and birth based primarily upon information that she provided as part of her medical history when she sought treatment from defendants. In a form apparently filled out when she first visited defendants' practice, there is a section for "past surgical history;" with entries as follows:

Procedure Name: Cesarean section

Date: 2009

Notes: emergency c/s d/t maternal and fetal heart rate decels

Defendants assert that this entry reflects that Barber had an emergency Cesarean section in 2009 after that child was found to have a decelerated heart-rate, and defense counsel urges that the 2009 birth is analogous to what occurred in 2013. As already noted, this information was ostensibly given by Barber as background when she was seeking medical care. The entry provides basic, cursory prior medical information. There is nothing before the Court indicating that Barber has interjected her prior condition into this litigation nor is there any competent proof showing that this information is relevant to the current claim (see Cardillo v Hillcrest Gen. Hosp. -G.H.I. Group Health, 134 AD2d 229, 229-230 [1987]; cf. Ritter v Good Samaritan Hosp., 11 AD3d 667, 667-668 [2004]). The Court is not persuaded by the papers currently before it that Barber should be required to release her medical records from her prior pregnancy.

Based upon the foregoing analysis and upon review of the papers as enumerated hereinafter, it is

ORDERED that defendants' motion is denied, and it is further

ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.

The above constitutes the Decision and Order of this Court.

The original of this Decision and Order has been filed by the Court together with defendants' Notice of Motion dated September 1, 2016. Counsel for plaintiffs is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon defendants in accordance with CPLR 5513.

Dated: November 18, 2016

Lake George, New York

ROBERT J. MULLER, J.S.C.

Papers reviewed:

1. Affidavit in Support of Defendants' Motion of Amanda Kuryluk, Esq., dated September 1, [*4]2016, annexed Exhibits A through J.

2. Defendants' Memorandum of Law, dated September 1, 2016.

3. Affirmation in Opposition to Defendants' Motion of John K. Powers, Esq., dated September 16, 2016.

4. Plaintiffs' Memorandum of Law, dated September 16, 2016.

5. Reply Affirmation of Amanda Kuryluk, Esq., dated September 22, 2016.