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MOLLY ALPERT ET AL. v. STANLEY BIRNBAUM ET AL. (12/05/69)

SUPREME COURT OF NEW YORK, SPECIAL TERM, KINGS COUNTY


December 5, 1969

MOLLY ALPERT ET AL., PLAINTIFFS,
v.
STANLEY BIRNBAUM ET AL., DEFENDANTS

Anthony J. DiGiovanna, J.

Author: Digiovanna

 Motion to require the plaintiffs to serve a proper bill of particulars is granted. This court has consistently criticized that type of bill of particulars served in malpractice cases which restates the general laws of negligence and malpractice but which fails to isolate the particular acts complained of.

In the first paragraph, it is stated as follows: "In negligently, recklessly and carelessly failing to give proper preoperative treatment." That is improper. In what respects the proper preoperative treatment was not given is properly required. The same criticism is made of the statement concerning post-operative treatment. The statement that the defendants were negligent in negligently, recklessly and carelessly failing to ligate and suture properly is another example. In what respects had such failure existed, and in what portion of the operative field was such malpractice committed? Passing through the entire page of closely typewritten similar expressions, the statement appears: "in negligently, recklessly and carelessly failing to apply the standards in performing the operation and treating plaintiff post-operatively as customarily utilized in the community for operations and illnesses of this type." A specific statement of what standards were not applied would be a proper requirement, and what standards are customarily utilized would be a proper statement.

The court therefore strikes out so much of the bill of particulars as is set forth in paragraphs "1" and "3", with leave to the plaintiff to serve a proper bill of particulars. This shall be done within 20 days after service of the copy of the order to be entered herein together with notice of entry.

19691205

© 1998 VersusLaw Inc.



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