Open Bar: A Medical Malpractice Action in New York State Supreme Court

Part 2: Pre-Answer Motions and Discovery

Continuing the series on the course of a medical malpractice action in New York State Supreme Court, we left off with the discussion of pleadings. This blog will continue the discussion and address pre-Answer motions to dismiss and discovery following joinder of issue.

As we discussed in our last blog, in response to the Complaint served by the plaintiff, the defense will serve an Answer or make a pre-Answer motion. The most common motion at this stage of the pleadings is a Motion to Dismiss based upon grounds set forth in CPLR Rule 3211(a)(1)-(11). The motion may seek to dismiss the entire action or a single cause of action. Id. Some of the most commonly asserted grounds asserted in support of a motion to dismiss in medical malpractice litigation include: a defense based on documents (contract); lack of jurisdiction over the person or subject matter; absence of legal capacity to sue (plaintiff is  deceased and an estate representative has not yet appointed); release; expiration of the statute of limitations; and failure to state a cause of action. Id. During the pendency of a pre-Answer motion to dismiss, all proceedings are stayed until a decision is rendered. CPLR 3211(g)(3).

In contrast, when an Answer is served in a medical malpractice action, the answering party (defense) typically serves a host of discovery demands, a demand for Bill of Particulars, and a Notice to Take Deposition. During discovery, the parties learn about their adversary’s claims, defenses, evidence, and expert proof. Discovery demands generally include demands for statements regarding the issues in litigation; information regarding experts who will be called to testify at trial, the names of witnesses, copies of relevant photographs/video, medical authorizations for plaintiff’s treatment, plaintiff’s social media network data, medical and health insurance information, employment or school authorizations and records. CPLR §3101 and CPLR Rule 3120. If physical evidence is relevant, including a medical device, the demands may also include an inspection of the evidence/ device by an expert. The defense may also request an independent medical examination of the plaintiff. CPLR §3121.

Expert disclosures are among the most important disclosures made in a medical malpractice action. Expert testimony is required to prove a medical malpractice action, so this evidence is often pivotal in the outcome. Parties are required to disclose the subject matter and substance of the facts and opinions on which each expert is expected to testify, the expert’s qualifications (but not the expert’s name), and a summary of the grounds for the expert’s opinions. CPLR §3101(d)(1).

A demand for a Bill of Particulars will also typically be served with the answer. CPLR §3041 and CPLR Rules 3042-3043. While it is technically a pleading, it has similarities to discovery in that it provides the adversary with an amplification of the claims being made in the pleading. CPLR Rule 3043 specifies particulars that may be demanded in a personal injury action (including medical malpractice actions), although the Court has discretion to allow additional particulars. The most significant particulars in a malpractice action include:  the date and  time of the occurrence, the acts or omissions constituting the negligence (malpractice) claimed, and the injuries, disability and special damages claimed. In particularizing the negligence or malpractice claimed, the plaintiff must provide individual responses to each defendant with the alleged acts or omissions specific to that defendant. Stoddard v New York Oncology Hematology, P.C., 172 AD3d 1504 (3d Dep’t 2019). In other words, identical responses to each defendant in an action are insufficient. Id.

Last but not least, a Notice of Examination Before Trial (also known as a deposition) is typically served with the Answer. CPLR Rule 3106. This is important because the priority of depositions is based on the priority of service. Id. Therefore, the defense, which has the first opportunity to serve a Notice to Take Deposition with the Answer, will usually take advantage of this opportunity to question the plaintiff first at deposition.

The plaintiff will then serve their discovery demands, demand for a Bill of Particulars on any defenses or counterclaims pled in the Answer and Notice of Examination Before Trial on the defendants. If a hospital or practice is a defendant, the Notice will often identify the witness by name, knowledge, or position who plaintiff seeks to depose. In addition to the discovery demands noted above, plaintiffs will also demand the defendant’s available insurance coverage. CPLR 3101(f).

Once paper discovery is completed, depositions will follow. The practice relating to depositions in medical malpractice cases will be covered next in this continuing litigation series.

Stay tuned for the next monthly Open Bar series installment.

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This document is for general purposes only and should not be construed as medical, dental or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical, dental or professional obligations, the applicable state or federal laws or other professional questions.