Supreme Court, Steuben County, January 3, 2023

Brown, Gruttadaro & Prato, PLLC (Thomas M. Prato of counsel) for Joseph Talarico, M.D., defendant.

Dempsey & Dempsey (Catherine B. Dempsey of counsel) for plaintiffs.

Amanda Strobel (hereinafter plaintiff) initiated this action sounding in medical malpractice against Joseph Talarico, M.D.^[FN1] (hereinafter defendant), alleging various claims of negligence surrounding plaintiff's gallbladder surgery conducted on November 6, 2017.

Defendant has now moved for summary judgment dismissing the complaint, or individual claims of negligence alleged in the plaintiff's bill of particulars. For the reasons that follow, the defendant's motion is granted in part and denied in part.

Relevant Facts

Plaintiff was examined by the defendant on October 31, 2017, in preparation for a laparoscopic cholecystectomy as she was suffering from apparent cholecystitis due to gallstones. She was examined by the defendant and the risks and benefits of the procedure were discussed with the plaintiff.^[FN2]

The surgery was conducted by the defendant on November 6, 2017. During the surgery, the plaintiff's common bile duct was cut approximately two centimeters below the bifurcation of [*2]the right and left hepatic duct.^[FN3] Thereafter, plaintiff was transported to Strong Memorial Hospital where she underwent an open repair surgery, a Roux-en-Y choledochojejunostomy.

Plaintiff, in her verified bill of particulars, alleged the following claims of negligence as to the defendant: (1) failed to{**77 Misc 3d at 1053} perform a proper physical examination; (2) failed to obtain an adequate history; (3) failed to keep proper and accurate medical records; (4) failed to possess sufficient knowledge and skill to properly perform a laparoscopic cholecystectomy; (5) improperly and negligently performed a laparoscopic cholecystectomy; (6) failed to engage the services of a physician with the necessary and appropriate skills to assist with the laparoscopic surgery; (7) improperly and negligently performed laparoscopic cholecystectomy with only a physician's assistant to assist; (8) failed to obtain proper visualization of the surgical field; (9) failed to convert to an open procedure; (10) failed to properly identify the entire hepatic ductal system before proceeding with the cholecystectomy; (11) misidentified the right and left hepatic ducts, common hepatic duct, common bile duct and cystic duct; (12) wrongly and errantly applied clips to the right and left hepatic ducts, common hepatic and/or common bile ducts; (13) wrongly transected the right, left and/or common hepatic ducts; (14) wrongly caused a Strasberg D/E injury to the bile duct system; (15) applied excessive and/or misdirected traction on the biliary structures, blood vessels and bile ducts, thus distorting the anatomy; (16) performed surgery outside of the scope of his capability; (17) improperly excised the right and left hepatic ducts, the common hepatic duct, the common bile duct and the left hepatic artery; (18) misused cautery and thus injured the bile ducts; (19) failed to obtain medical clearance before surgery; (20) failed to reduce the risk of injury to the bile duct system during surgery; (21) failed to take due cognizance of the fact that plaintiff's gallbladder was significantly inflamed; (22) failed to consider and implement conservative treatment options to reduce the inflammation prior to surgery; (23) failed to place a tube to drain the gallbladder of excess bile; (24) failed to "rest" the gallbladder before performing surgery; (25) failed to identify and adhere to the "critical view of safety" and the "Triangle of Calot'' before transection; (26) failed to perform an intraoperative cholangiogram during surgery to better visualize the anatomy of the bile duct system from the liver to the small intestine and to prevent injury to the surrounding structures and organs; and (27) failed to care for the plaintiff in a medically advised, acceptable and adequate manner such that her injuries would not have occurred.^[FN4]{**77 Misc 3d at 1054}

In support of his summary judgment motion the defendant submits his own affidavit wherein he avers as to his education, training, and experience as a surgeon specializing in laparoscopic and bariatric surgery. Dr. Talarico, in his affidavit, addresses each claim of negligence set forth in the plaintiff's bill of particulars and ultimately opines that he followed appropriate standards of care in conducting the surgical procedure on November 6, 2017.^[FN5]

Plaintiff counters the defendant's evidentiary showing with an expert affidavit from a board-certified surgeon. The expert's name was redacted, but the court reviewed the unredacted affidavit in camera. (Vega v Mount Sinai-NYU Med. Ctr. & Health Sys., 13 AD3d 62 [1st Dept 2004].)[*3]

Plaintiff's expert opined that the defendant deviated from accepted standards of medical care and was the cause of the plaintiff's injuries. Specifically, the expert opined that the defendant deviated from the standard of care in failing to properly identify the plaintiff's anatomy and thereby cutting the common bile duct and in failing to obtain "the critical view of safety" as required by the "critical view of safety technique."^[FN6] However, the expert did not address all allegations of negligence made by the plaintiff in her bill of particulars.

Defendant is entitled to summary judgment dismissing certain claims of negligence.

In applying the well-settled standards for summary judgment generally,^[FN7] those applicable to defense motions for summary judgment in medical malpractice actions,^[FN8] there are tri{**77 Misc 3d at 1055}able issues of fact on the instant record with respect to the plaintiff's causes of action.

In light of the conflicting expert opinions, there exists a quintessential battle of the experts and such battles are best left for a jury's resolution and not this court on papers. "Where, as here, a nonmovant's expert affidavit 'squarely opposes' the affirmation of the moving parties' expert, the result is 'a classic battle of the experts that is properly left to a jury for resolution.' " (Mason v Adhikary, 159 AD3d 1438, 1439 [4th Dept 2018]; Nowelle B. v Hamilton Med., Inc., 177 AD3d 1256, 1258 [4th Dept 2019].) Thus, on this record and assuming arguendo that defendant has met his prima facie burden establishing entitlement to summary judgment as a matter of law, plaintiff raised triable issues of fact in response. Thus, the defendant's motion for summary judgment to dismiss the complaint must be denied.

However, the defendant argues that he is entitled to dismissal of those claims in the plaintiff's bill of particulars not addressed by the plaintiff's expert in his responding affidavit, citing Bubar v Brodman (177 AD3d 1358 [4th Dept 2019]). The plaintiff, citing Abbotoy v Kurss (52 AD3d 1311 [4th Dept 2008]), disagrees.

Although Bubar—a medical malpractice action—is frequently cited as the decision that abandoned the previous burden placed upon plaintiffs responding to a summary judgment motion in a medical malpractice action by O'Shea v Buffalo Med. Group, P.C. (64 AD3d 1140 [4th Dept 2009], abrogated by Bubar v Brodman, 177 AD3d 1358 [4th Dept 2019]), contained therein is another holding with significant impact on medical malpractice summary judgment motions—the ability of defendants in medical malpractice actions to seek dismissal of claims of negligence contained in a bill of particulars.

A medical malpractice defendant meets their initial burden on a summary judgment motion seeking dismissal of the complaint when they present factual evidence that{**77 Misc 3d at 1056}

" 'address[ed] each of the specific factual claims of negligence raised in plaintiff's bill of particulars' (Larsen v Banwar, 70 AD3d 1337, 1338 [4th Dept 2010]) and was 'detailed, specific and factual in nature' (Macaluso v Pilcher, 145 AD3d 1559, 1560 [4th Dept 2016] [internal quotation marks omitted]; see Groff v Kaleida Health, 161 AD3d 1518, 1520 [4th Dept 2018])." (Pasek v Catholic Health Sys., Inc., 186 AD3d 1035, 1036 [4th Dept 2020].)

To rebut this initial burden, the plaintiff must respond with evidentiary submissions that create an issue of fact. This is normally accomplished through an expert affidavit submitted by the plaintiff.

In Abbotoy v Kurss, the Fourth Department rejected an argument by the medical malpractice defendant therein that the failure of the plaintiffs' expert to rebut the defendant's expert as to all claims of negligence contained in the bill of particulars required dismissal of those claims not specifically addressed. The Court held:

"We reject the contention of defendant that he is entitled to partial summary judgment with respect to those allegations in the bill of particulars not specifically addressed by plaintiffs' experts. Defendant's contention is based on a misperception of the function of a bill of particulars. '[A] bill of particulars is not a pleading, but just an expansion of one' (Siegel, NY Prac § 238, at 401 [4th ed]). The expert affidavits submitted by plaintiffs set forth in detail the manner in which defendant deviated from the standard of care and how those deviations caused or contributed to their son's injuries, thereby raising triable issues of fact with respect to the causes of action for negligence and medical malpractice. Contrary to defendant's contention, plaintiffs were not required to submit an expert opinion with respect to each allegation in the bill of particulars inasmuch as the bill of particulars merely amplified those causes of action (see generally id. at 400)." (Abbotoy v Kurss at 1312.)

Four months prior to the release of the decision in Abbotoy v Kurss the Fourth Department issued the decision in Donna Prince L. v Waters (48 AD3d 1137 [4th Dept 2008]). In that wrongful death case, the defendants moved for summary judgment dismissing the complaint, and the trial court granted the motion. The Fourth Department, before considering a more{**77 Misc 3d at 1057} substantive issue, held: "[w]e note at the outset that plaintiff has abandoned the wrongful death cause of action, inasmuch as she failed to oppose that part of defendants' motion with respect to it and, indeed, has not addressed it on appeal (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994])." (Donna Prince L. v Waters at 1138.)

Ciesinski v Town of Aurora (202 AD2d 984 [4th Dept 1994]), cited in Donna Prince L., held, in passing, that the failure of the defendants therein to brief on appeal an issue raised in their motion papers before the trial court constituted abandonment of the issue, citing First Natl. Bank of Amenia v Mountain Food Enters. (159 AD2d 900 [3d Dept 1990]) and Lamphear v State of New York (91 AD2d 791 [3d Dept 1982]). In both First Natl. and Lamphear the Third Department held that issues that had been raised below at the trial court level, but not briefed on appeal, were deemed abandoned. (First Natl. Bank of Amenia v Mountain Food Enters. at 901; Lamphear v State of New York.)

Donna Prince L. v Waters, Ciesinski v Town of Aurora, First Natl. Bank of Amenia v Mountain Food Enters., and Lamphear v State of New York all concerned the abandonment of an issue on appeal due to the failure of the appealing party to address an issue raised below on an appeal from a summary judgment motion or a trial determination. (See also Allington v Templeton Found., 167 AD3d 1437, 1439 [4th Dept 2018] ["plaintiffs did not oppose that part of Bassett's cross motion and failed to respond to the corresponding contention on Bassett's cross appeal, and plaintiffs have therefore abandoned that cause of action (see Donna Prince L. v Waters, 48 AD3d 1137, 1138 [4th Dept 2008])"].)

However, in Bubar v Brodman, the Fourth Department seems to have expanded the ability of a medical malpractice defendant to move to dismiss on a motion for summary judgment theories of negligence (as opposed to causes of action or, conversely, defenses raised by a defendant) contained in a bill of particulars—which is not considered a pleading—on a theory of abandonment. Despite the holding of Abbotoy v Kurss, the Fourth Department held in Bubar that the plaintiff abandoned claims of negligence contained in their bill of particulars when their expert failed to address all of the claims of negligence contained in the bill of particulars when responding to the defendant's expert (who specifically addressed all of{**77 Misc 3d at 1058} the claims of negligence contained in the bill of particulars in the defense motion for summary judgment) thus requiring dismissal of the unaddressed claims, citing Donna Prince L. v Waters. The Fourth Department held:

"we agree with the Cellino defendants that, contrary to the conclusion of the court, the affidavit of Cellino submitted in support of their motion sufficiently 'address[ed] each of the specific factual claims of negligence raised in . . . plaintiff's bill of particulars' (Wulbrecht [v Jehle], 89 AD3d [1470,] 1471 [4th Dept 2011] [internal quotation marks omitted]; see Webb [v Scanlon], 133 AD3d [1385,] 1386 [4th Dept 2015]). In opposition, plaintiff addressed only the claims related to the alleged deficiencies in Cellino's management of decedent's anticoagulation therapy regime. Therefore, the remaining claims are deemed abandoned, and the court erred in denying the Cellino defendants' motion with respect to those claims against them (see Donna Prince L., 48 AD3d at 1138)." (Bubar v Brodman, 177 AD3d at 1360-1361.)

Similarly, in Pasek v Catholic Health Sys., Inc.,^[FN9] the Fourth Department adhered to the holding of Bubar v Brodman, again dismissing unaddressed claims of negligence rebutted by a defense expert on a defense summary judgment motion:

"The affidavit of plaintiff's expert anesthesiologist addressed defendant's conduct only with respect to the claims arising from defendant's alleged failure to ensure that the transport of Pasek to the operating room was performed safely and his alleged failure to [*4]document the disconnection event and resulting blood loss in Pasek's medical chart. Inasmuch as plaintiff's expert failed to address the claims against defendant regarding the diagnosis, consulting, testing, examination, and pre- and post-operative treatment and did not identify any deviation with respect to defendant's efforts to ventilate, monitor, or resuscitate Pasek, those claims are deemed abandoned. Supreme Court thus erred in denying defendant's motion with respect to those claims (see Bubar v Brodman, 177 AD3d 1358, 1361{**77 Misc 3d at 1059} [4th Dept 2019]; Donna Prince L. v Waters, 48 AD3d 1137, 1138 [4th Dept 2008]), and we therefore modify the order accordingly." (186 AD3d at 1036; see also Noga v Brothers of Mercy Nursing & Rehabilitation Ctr., 198 AD3d 1277, 1279 [4th Dept 2021] ["Plaintiff's expert did not, however, address the claims regarding inadequate staffing procedures and training, and those claims are accordingly deemed abandoned (see Pasek, 186 AD3d at 1036)"].)

It is generally recognized that a bill of particulars serves to amplify a pleading and it does not contain new legal theories or causes of action. (See Valentine v 2147 Second Ave. LLC, 203 AD3d 531, 532 [1st Dept 2022] ["the purpose of a bill of particulars is to amplify pleadings, not add a new theory or cause of action (see Paterra v Arc Dev. LLC, 136 AD3d 474 [1st Dept 2016]; see also Greenwood v Whitney Museum of Am. Art, 161 AD3d 425, 426 [1st Dept 2018])"].) It is also generally recognized that a party may move for summary judgment as to a cause of action, or a defense, or to limit factual issues at trial. (CPLR 3212 [b], [g].) However, the Bubar line of cases allows a medical malpractice defendant to seek dismissal of claims of negligence contained in a bill of particulars on a principle of abandonment should the plaintiff not specifically support each allegation of negligence contained in their bill of particulars in responding to a defense summary judgment motion in which the defendant met their initial burden.^[FN10]

The resultant ruling dismissing unaddressed claims in the bill of particulars as abandoned does not dismiss an action, or a defense, or find that particular facts are not in issue—but it does have the practical effect of potentially limiting the plaintiff's proof by restricting the theories of negligence relied upon at trial which purportedly support the medical malpractice cause of action. (Cf. Zivian v McNulty, 136 AD2d 547 [2d Dept 1988].)

This creates an apparent incongruity between the Bubar and Pasek holdings and CPLR 3025 (c). Rule 3025 allows amendment of the pleadings to conform to the proof at trial, provided{**77 Misc 3d at 1060} there is no prejudice or surprise to the other party. (See Kimso Apts., LLC v Gandhi, 24 NY3d 403 [2014].)^[FN11] Bubar and Pasek operate to require potential dismissal of one [*5]or more particulars as to negligence if unaddressed by the plaintiff—but the trial court still has discretion to conform the pleadings to the trial proof.

"An application to amend under subdivision (c) is likewise addressed to the sound discretion of the court and should be determined in the same manner and by weighing the same considerations as upon a motion to amend pursuant to subdivision (b), except that under (c) the possibly increased effect on orderly prosecution of the trial might be a factor to be taken into account (see 3 Weinstein-Korn-Miller, NY Civ Prac, par 3025.26). Where no prejudice is shown, the amendment may be allowed 'during or even after trial' (Dittmar Explosives v A. E. Ottaviano, Inc., 20 NY2d 498, 502; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3205:15, p 487; cf. Brecher v Brecher, 27 NY2d 986, 987; Dransfield v Eastern Seaboard Warehouse Corp., 43 AD2d 569, 570)." (Murray v City of New York, 43 NY2d 400, 405 [1977] [footnote omitted].)

Courts have long recognized that summary judgment is a drastic remedy, and their proper role is "issue finding" and not "issue resolution." (Kriz v Schum, 75 NY2d 25, 33 [1989].) Dismissal of claims of negligence contained in the unaddressed particulars would be a drastic remedy at this stage, and one{**77 Misc 3d at 1061} that is arguably not contemplated by the relevant CPLR provisions. However, this court is constrained by Bubar v Brodman and Pasek v Catholic Health Sys., Inc., in deciding the issues herein, but recognizes the implications of these decisions are potentially significant to medical malpractice plaintiffs generally, and the plaintiff herein. (Cf. Machynski v Atwal, 76 Misc 3d 1094 [Sup Ct, Erie County 2022].)

Thus, as the plaintiff's expert did not address the following claims of negligence contained in the plaintiff's bill of particulars, the following claims are dismissed as abandoned: (1) failed to perform a proper physical examination; (2) failed to obtain an adequate history; (3) failed to keep proper and accurate medical records; (4) failed to possess sufficient knowledge and skill to properly perform a laparoscopic cholecystectomy; (5) failed to engage the services of a physician with the necessary and appropriate skills to assist with the laparoscopic surgery; (6) improperly and negligently performed laparoscopic cholecystectomy with only a physician's assistant to assist; (7) performed surgery outside of the scope of his capability; (8) failed to obtain medical clearance before surgery; (9) failed to consider and implement conservative treatment options to reduce the inflammation prior to surgery; (10) failed to place a tube to drain the gallbladder of excess bile; and (11) failed to "rest" the gallbladder before performing surgery. (Bubar v Brodman; Pasek v Catholic Health Sys., Inc.)

As to the remaining claims of negligence contained in the plaintiff's bill of particulars, those claims were fairly encompassed within the plaintiff's expert's opinions of negligence committed by the defendant and thus are sufficient to require denial of the defendant's motion [*6]for summary judgment dismissing the complaint.

Accordingly, on consideration of all the papers filed herein, and having heard oral argument on the motion, it is ordered that the defendant's motion for summary judgment to dismiss the complaint pursuant to CPLR 3212 is denied; it is further ordered that the following claims contained in the plaintiff's bill of particulars are dismissed as abandoned: (1) failed to perform a proper physical examination; (2) failed to obtain an adequate history; (3) failed to keep proper and accurate medical records; (4) failed to possess sufficient knowledge and skill to properly perform a laparoscopic cholecystectomy; (5) failed to engage the services of a physician with the necessary and appropriate skills to assist with the laparoscopic surgery; (6){**77 Misc 3d at 1062} improperly and negligently performed laparoscopic cholecystectomy with only a physician's assistant to assist; (7) performed surgery outside of the scope of his capability; (8) failed to obtain medical clearance before surgery; (9) failed to consider and implement conservative treatment options to reduce the inflammation prior to surgery; (10) failed to place a tube to drain the gallbladder of excess bile; and (11) failed to "rest" the gallbladder before performing surgery.

Any prayers for relief not specifically addressed herein are denied.

"It is well settled that a defendant moving for summary judgment in a medical malpractice action ' "has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" ' (O'Shea v Buffalo Med. Group, P.C., 64 AD3d 1140, 1140 [4th Dept 2009], appeal dismissed 13 NY3d 834 [2009] [emphasis added]) . . .

" '[t]he burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact only after the defendant physician meets the initial burden . . . , and only as to the elements on which the defendant met the prima facie burden.' " (Id. at 1359 [citation omitted].)