personal injury lawyers new york

New York Personal Injury and Insurance Defense Lawyers

Court Approves Addition of New Allegation Three Years After Filing

The Second Department ruled 3-2 that a medical malpractice plaintiff properly amended his lawsuit after failing to add an allegation that his gastroenterologist failed to diagnose him with appendicitis. The doctor in the matter performed a colonoscopy in 2009 on the plaintiff Peter Mackauer. Approximately one week later, Mackauer returned to the gastroenterologist complaining of abdominal pain. The doctor refused to physically examine him, and due to his “highly emotional state,” advised him to see a psychiatrist.


Ten days later, Mackauer visited an emergency room and was diagnosed with acute perforated appendicitis. Two years later, Mackauer sued the doctor and his employer claiming that the gastroenterologist punctured his appendix during the colonoscopy. The court heard testimony from expert witnesses from both sides who stated that the appendix was not punctured during the colonoscopy. However, both doctors agreed that Mackaeur showed signs of appendicitis during his follow up-visit.


It wasn’t until 2014 that Mackaeur served a “supplemental” bill of particulars highlighting the fact that the gastroenterologist failed to conduct any tests as to why Mackaeur was suffering abdominal pain, or recommend that he go to the emergency room. Notably, the “supplemental” bill of particulars did not use the term “appendicitis.” The defendants in the case moved for summary judgment which was dismissed by the lower court.


Upon appeal the court recognized that to succeed on a motion for summary judgment dismissing a complaint alleging medical malpractice, the physician must establish, prima facie, either that there was no departure from accepted standards of medical care or that any departure was not a proximate cause of the plaintiff’s injuries. The court found that the plaintiffs “supplemental” bull of particulars properly set forth the Mackauer’s theory that the doctor failed to adequately diagnose him with appendicitis.


Although the bill of particulars was labeled a “supplemental” bill of particulars, under CPLR 3042[b] the plaintiff was entitled to amend his bill of particulars once as a right at any time prior to the filing of the note of issue. The court noted that although a “supplemental” bill of particulars cannot be used to articulate a new theory of liability, the Plaintiff’s mislabeling of his bill of particulars would not substantially prejudice a right of the party.


Because the amending of the bill of particulars was done prior to discovery being completed and the case being certified as ready for trial, the court allowed the allegation to be added. The two dissenting judges felt that the failure to add the word “appendicitis” did not put the defendants on notice of the actual cause of action, and therefore was a new liability raised for the first time. The majority, however, found that the failure to diagnose was sufficient and therefore upheld the lower court’s decision to dismiss the motion for summary judgment.


Medical malpractice lawsuits have the potential to hinder the success and productivity of medical professionals and the healthcare institutions they work for. Aggressive medical malpractice defense is the sometimes the only option when doctors, medical staff members, and hospitals are confronted with a legal action that can negatively impact their practice. The New York medical malpractice lawyers at Montfort, Healy, McGuire & Salley, LLP have experience representing healthcare professionals, hospitals and insurance companies in these matters and will always put forth a strong and compelling defense on behalf of our clients. For more information or to schedule a consultation, contact our Garden City, New York medical malpractice defense law firm at (516) 747-0748.

Leave a Reply

Your email address will not be published. Required fields are marked *

The reCAPTCHA verification period has expired. Please reload the page.

Meet Our Attorneys:

blog From Our Blog:

Visit Blog

Skip to content