Felock v. Albany Medical Center Hospital

Elizabeth Felock (plaintiff) was hospitalized at Albany Medical Center Hospital (hospital) (defendant) after her birth, during which time Elizabeth allegedly suffered skin burns. Elizabeth and her mother (plaintiff) sued the hospital and Albany Medical College (college) (defendant) for medical malpractice. Elizabeth and her mother provided a bill of particulars in response to a request by the hospital and college, but the hospital and college objected to the bill, arguing that it contained insufficient detail. Elizabeth and her mother responded that their ability to provide detail was impaired by the hospital and the college’s failure to produce in discovery a full set of hospital records, including the relevant nursing notes. Nevertheless, the bill of particulars alleged that (1) Elizabeth was injured by the failure to keep and prepare adequate medical records and the lack of proper medical knowledge by the individuals who treated Elizabeth and (2) Elizabeth and her mother did not know whether medication had been improperly administered or defective equipment had been used because they did not have the nursing notes. In addition, the bill of particulars stated that Elizabeth and her mother did not damages-related information. The hospital and the college subsequently represented that the hospital had a policy of retaining nursing notes but that the hospital could not find the nursing notes regarding Elizabeth. The hospital and the college also moved pursuant to Civil Practice Law and Rules (CPLR) §§ 3042 and 3126 to strike certain paragraphs of the bill of particulars due to the lack of detail. Elizabeth and her mother opposed this motion and cross-moved pursuant to §§ 3124 and 3126 for sanctions against the hospital and the college for not producing the nursing notes in discovery. The supreme court denied the hospital and the college’s motion. The supreme court conditionally granted Elizabeth and her mother’s motion, ordering the hospital and the college to produce the nursing notes within 90 days or be sanctioned by being precluded from offering any evidence at trial regarding the information in the nursing notes. The hospital and the college appealed.