SHORT FORM ORDER

SUPREME COURT - STATE OF NEW YORK

Present: HON. MARVIN E. SEGAL, Justice

______~______~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ TRIAL&IS PART 4 NASSAU COUNTY

KARIN McATEER, INDEX NO. 11260/02

Plaintiff, MOTION DATE: 9/15/03

-against- MOTION NO. 001

SEYMOUREINHORN,

Defendant.

The following papers were read on this motion:

Notice of Motion...... 1 Affirmation in Opposition...... 2 Reply Affirmation ...... 3

The motion brought by the defendant, in the above captioned medical malpractice action, for omnibus relief is determined as set forth hereinbelow.

The instant action arises from a single contact between the defendant, an orthopedist, and the plaintiff on June 11,2001, at the defendant’s medical offices. Prior to the aforesaid date, the defendant had been asked, by an attorney representing the plaintiff herein in an unrelated workers ’ compensation claim, to

-l- evaluate her claimed work related right shoulder injury. It is the plaintiffs claim, _ - in the instant action, inter alia, that, in performing his radiological and manipulative examinations, the defendant used excessive force and caused aggravation of the injury for which the plaintiff was being evaluated.

Initially, the defendant seeks an order of this Court, pursuant to Rule 3042 (c) and (d) of the CPLR, precluding the plaintiff from offering proof at the trial hereof of the allegations in paragraphs “2”, “7” “8 ”, 9“ and” “15” of the plaintiffs Bill of Particulars served upon counsel for the defendant on or about December 2, 2002.

With respect to paragraph numbered “2”, of the plaintiffs Verified Bill of Particulars, while it is true that some of the language is boilerplate, the Court finds specific allegations that the defendant performed excessive manipulations on the plaintiffs body resulting in severe cervical disc injury and operative intervention.

The purpose of a bill of particulars is to describe the general claims of the complaint with specificity, thereby limiting proof and preventing surprise at trial (see, State of New York v. Horesemen ’s Benevolent& Protective Assn., 34 AD2d 769).

It is the order of this Court that the plaintiffs proof at the trial hereof is herewith limited to her specific claims with respect to the defendant ’s excessive manipulations of the plaintiffs body at the time of the examination that is the subject matter of this action.

With respect to paragraph numbered “7”, the plaintiff alleges: “Plaintiffs husband was totally deprived of the services and consortium of the plaintiff, Karin McAteer. He remains partially deprived of such services to date and for the foreseeable future. Such services include: household help and companionship. ”

The Court ’s examination of the summons and Verified Complaint herein finds that the husband of Karin McAteer is not a party to the instant action. Accordingly, paragraph “7” is irrelevant to this action. Therefore, paragraph numbered “7” of the plaintiffs Verified Bill of Particulars is herewith struck and the plaintiff is precluded from offering any proof at the trial hereof of the plaintiffs non-party husband ’s loss of services claim.

-2- Paragraph numbered “8” in the plaintiffs Verified Bill of Particulars states: Plaintiff will claims (sic) that the defendant violated all those rules, regulations statute (sic), laws or ordinances of which this Court may take judicial notice at the time of trial. ”

It is the order of this Court that the plaintiff, within thirty (30) days of the completion of discovery herein, serve a further Bill of Particulars setting forth those rules, regulations, statutes, laws or ordinances which it is claimed were violated by the defendant. See, Kwang Sik Kim v. A&K Plastic Products, Inc., 133 AD2d 219.

New York Public Health Law Section 2805-d. Limitation of medical, dental or podiatric malpractice action based on lack of informed consent provides in pertinent part:

“Lack of informed consent means the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.

The right of action to recover for medical, dental or podiatric mal- practice based on a lack of informed consent is limited to those cases involving either (a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure which involved invasion or disruption of the integrity of the body.

For a cause of action therefor it must also be established that a reasonably prudent person in the patient ’s position would not have undergone the treatment or diagnosis if he had been fully informed and that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought. ”

Paragraph numbered “9” in the plaintiffs Verified Bill of Particulars alleges: -3- “Plaintiff claims that she was imparted no information or disclosure concerning the risk of injury. That the disclosure was thus reasonably inadequate and that had the risks been disclosed she would have materially affected (sic) her decision as to treatment. Plaintiff further claims had there been reasonable disclosure of these dangers, her decision would have been to have proper treatment during her visiting with this defendant. This defendant (sic) failure to make reasonable disclosure was the proximate cause of her injuries; it is alleged that the plaintiff was subjected to improper treatment, which resulted in injury to her. ”

Based upon all the papers submitted for this Court ’s consideration, the Court finds and determines that, although inartfully stated, paragraph numbered cc9y’ sufficiently particularizes the plaintiffs claim of lack of informed consent with respect to the defendant ’s non-emergency treatment and/or procedure as defined inPublic Health Law Section 2805-d(1), (2) and (3).

Furthermore, the defendant ’s application for an order of this Court, pursuant to Rule 32 12 of the CPLR, granting summary judgment in favor of the defendant dismissing the plaintiffs Second Cause of Action grounded on lack of informed consent is denied.

It is axiomatic that summary judgment requires issue-finding (Heller v. Trustees of Town of East Hampton,166 AD2d 554). This Court ’s review of-the plaintiffs Second Cause of Action as set forth in the verified complaint herein, finds a prima facie claim of lack of informed consent as such cause of action is defined in the Public Health Law Section 2805-d (l), (2) and (3). Therefore, the plaintiff is entitled to a determination by the trier of facts whether the defendant before obtaining the plaintiffs consent to the non-emergency treatment/procedure provided appropriate information, whether a reasonably prudent person in the plaintiffs position would have decided not to undergo the treatment/procedure if given appropriate information concerning the risks and alternatives and whether the subject treatment/procedure a substantial factor in causing injury to the plaintiff.

Paragraph numbered “15” in the plaintiffs verified Bill of Particulars states: “Expenses will be produced after plaintiffs deposition. ”

-4- It is the order of this Court that the plaintiff, within thirty (30) days prior to her oral deposition before trial provide the defendant a particularized claim for all past, present and foreseeable future special damages.

This Court ’s examination of the defendant ’s Demand for Discovery and Inspection, dated November 19,2002, finds that each and every of the six (6) demands set forth therein uses broad and general phrases in describing the documents to be produced, such as “all” or “any and all ”.

Rule 3 120 of the CPLR authorizes the service of a notice for discovery of “designated documents. ”The use of such terms as “all” or “any and all ” has been held to be lacking in requisite particularity (Rios v. Donovan, 21 AD2d 409; City of N.Y. v. Friedberg, 62 AD2d 407; Miller v. Columbia Records, 70AD2d 5 17; Ehrlich v. Ehrlich, 74 AD2d 5 19).

Accordingly, the Court finds the defendant ’s Demand for Discovery and Inspection, dated November 19,2002, herein, to be lacking in the requisite particularity. The aforesaid Notice with its documentary requests is not a specification of documents but rather of subject matter. Instead of designating documents the defendant has stated broad categories of subject matters and asked for “any” or “any and all” documents relating to those subject matters.

Accordingly, the defendant ’s application for an order of this Court, pursuant to CPLR Rule 3 124 and Section 3 126, compelling the plaintiff to comply with the aforesaid Demand is denied in all respects.

The defendant ’s motion is denied in all other respects.

It is the order of this Court that counsel for both parties appear before this Court at 9:30 a.m. on November 6,2003, for a Certification Conference.

Dated: September24,2003

McAteer.einhorn