When a patient has a complex disease such as cancer, he or she will typically treat with more than one medical care provider. Thus, in lawsuits arising out of oncology malpractice, several physicians may be named as defendants responsible for the injured party’s harm. Regardless of how many defendants are named in an oncology malpractice case, however, the plaintiff is required to specify the nature of the malpractice committed by each defendant, and the failure to do so can adversely affect the plaintiff’s case. This was illustrated in a recent New York oncology malpractice case, where the court held that the plaintiff’s bills of particulars lacked the specificity required to attribute negligence to each defendant. If you suffered harm or the loss of a loved one due to oncology malpractice it is critical to engage a capable Rochester oncology malpractice attorney with the skills and experience required to help you set forth the evidence needed to prove your claim.
Facts Regarding the Care Provided by the Defendants
It is reported that plaintiff’s decedent was diagnosed with colon cancer and became a patient of the defendant care facility and the defendant oncologist. The decedent was prescribed an intravenous chemotherapy treatment that included several different drugs. Prior to beginning the treatment, the decedent was advised that she could not have the treatment if she had a particular gene mutation, because it would cause a toxic buildup of one of the drugs in the treatment. The decedent did not know whether she had the gene mutation and was not advised there was a test available to test for the mutation.
Allegedly, the decedent began the treatment, after which she began to experience adverse side effects. She was admitted to the defendant hospital where she was treated for thirteen days. The decedent ultimately died due to drug toxicity from her treatment. The plaintiff, the administrator of the decedent’s estate, filed a medical malpractice lawsuit against the defendant hospital, two care facilities, and twelve doctors. The plaintiff subsequently served each defendant with a bill of particulars, after which the defendants moved the court to strike certain portions of the bills of particulars and to preclude the plaintiff from introducing evidence related to the bills, due to the bills’ the lack of specificity. The court granted the orders, after which the plaintiff appealed.
Purpose of a Bill of Particulars
A bill of particulars is meant to elaborate upon the allegations in the pleadings, limit the proof that a plaintiff may present, and prevent surprise at trial. In other words, a bill of particulars must specifically define the discrete acts of negligence credited to each defendant, and therefore vague phrases like “including but not limited to” are improper. Where there is more than one defendant, the plaintiff must set forth the precise acts of negligence ascribed to each defendant. Thus, when a plaintiff serves bills of particulars on several defendants with essentially the same allegations, they will be deemed insufficient. In the subject case, the court found that the defendants had discrete medical specialties and provided various types of care to the decedent. Therefore, the court because the plaintiff served the defendants with generalized bills of particulars, they were improper.
Consult an Experienced Rochester Oncology Malpractice Attorney Regarding Your Case
If a or a loved one sustained harm due to oncology malpractice, you should consult an experienced Rochester oncology malpractice attorney regarding your case and what evidence you may need to prove your treatment provider’s liability. The skilled oncology malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers will aggressively pursue the full amount of damages you may be able to recover. You can contact us at 585-653-7343 or through the online form to schedule a meeting to discuss your case.