FILED: KINGS COUNTY CLERK 08/14/ :59 PM INDEX NO /2014 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 08/14/2014

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1 '1. FILED: KINGS COUNTY CLERK 08/14/ :59 PM INDEX NO /2014 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 08/14/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ~ ~ ){ RINATDRAY, -against- Plaintiff, VERIFIED BILL OF PARTICULARS STATEN ISLAND UNIVERSITY HOSPITAL, LEONID GORELIK, METROPOLITAN OB-GYN ASSOCIATES, P.C., and JAMES J. DUCEY, Index No.: /2014 Defendants ){ Plaintiff, responding to the demand of defendants Leonid Gorelik and Metropolitan OB-GYN Associates, P.C., as and for her Verified Bill of Particulars, alleges as follows: 1. Upon information and belief, the negligent acts and/or omissions took place times of day are unknown. 2. The negligent acts and/ or omissions took pla'?e at Staten Island University Hospital. 3. 1

2 patient; in failing properly and/ or timely to take and/ or employ the mandatory ( J..,v f 1 find a more suitable ob-gyn to handle the patient's care; in failing properly,. accurately and/ or timely to present the facts to the nurses, the anesthesiologist, the RN manager, Dr. Ducey, and/ or Arthur Fried; in negligently causing other \! ~~~ medical practitioners to participate in the c-section; in failing properly and/ or!, \ \ 1 timely to seek court intervention prior to bringing the patient to surgery; in )'i\ \}\ failing properly and/or timely to keep current ofprofessional standards of care 't' l \ "\ \'I n h.\ and/ or standards of ethics; in failing properly and/ or timely to have the patient \i\ ]:i ~\ change positions, or move around; in failing to administer oxygen; if failing to \~1 consider other non-surgical 'ways to accelerate delivery of the baby and/ or reduce \\ \\\ \~, risks of harm to the baby; in failing properly and/or timely to use fetal scalp \ ~ 1\ \;~Vlectrode monitoring; in failing properly and/ or timely to employ oxytocin or A~imilar medications; in failing properly and/ or timely to use intrauterine pressure /);~~,!C;Y recordings; in failing properly and/ or timely to consider and/ or employ li1( ' ~ ) pharmacologic and non-pharmacologic methods of inducing labor, contractions I! /: / li it l/ j, 'i II )J and cervical ripening, including nipple stimulation, membrane stripping, hygroscopic dilators, osmotic dilators, Foley catheters, and double balloon '~\,",, devices; in failing to present these alternatives to the mother; in failing to explore "' 2

3 -...:.. all possible alternatives other than c-section, reviewing these with other medical personnel, and/ or patient and her family; in failing prop~rly to consider the possibility that a modality which might be relatively contra-indicated, might still be preferable to the patient than a c-section; in failing properly and/ or timely to induce and/ or accelerate contractions; in misreading and/ or misinterpreting the fetal heart strips; in failing properly and/ or timely to evaluate and/ or examine the patient; in failing properly and/or timely to summon the hospital's patient advocate; in failing properly and/ or timely to advise the patient of the existence and function of the hospital's patient advocate; in failing properly and/or timely to summon and/or consult the bioethics department of the hospital or ofnorth Shore-LIJ; in failing properly and/ or timely to advise the patient of the existence and function of the ethics department at the hospital, and her right to obtain an opinion from them; in failing properly and/ or timely to give the patient a copy of the patient's bill of rights and to assist her in using them especially the right to refuse treatment; in failing properly and/ or timely to repair the laceration; in failing properly and/ or timely to monitor the patient; in failing properly and/ or timely to make, keep and/ or review medical records; in failing to communicate properly and/ or timely with medical personnel and/ or the patient and/ or the patient's family; in failing to advise the patient and/ or her family in a timely fashion that there was a hospital policy which would prevent them from adhering to the mother's wishes to delivery vaginally; in failing properly and/ or timely to 3

4 ~.,.- transfer the patient to another institution which would honor the patient's stated wishes to deliver vaginally; in failing properly and/ or timely to provide the patient and/or her family with a copy of the Patient's Bill of Rights; in failing properly and/or timely to be aware ofthe Patient's Bill ofrights; in failing to call for a consultation or specialist or additional medical personnel; in failing to take "' appropriate tests; in failing properly and/ or timely to consider alternate methods of treatment; in failing properly and/or timely toorder and/or obtain a biophysical profile; in violating a. statute; in negligently violating a statute; in using excessive and misdirected force; in failing properly and/ or timely to visualize the operative field; in causing, permitting and/ or allowing too many people in the operating room; in failing properly and/ or timely to anticipate the presence of adhesions and/ or a difficult entry; in failing properly and/ or timely to call for a gynecologic oncologist or more experienced surgeon; in improperly substituting his judgment for that of the mother; in failing properly and/ or timely to request the permission of a court before overriding the mother's expressed wishes; in pressuring and threatening the mother in an effort to obtain her consent. 4. Dr. Gorelik performed the acts/ omissions described in paragraph #3 above. 5. NIA 4

5 .\ 6. Plaintiff objects to this question as calling for expert and evidentiary material beyond the scope of abill of particulars. Plaintiff is not required to set forth the manner in which a health care provider failed to act in accordance with accepted medical practices, customs and standards but see paragraph #3 for a general statement of acts and omissions. 7. Plaintiff objects to this question as calling for expert and evidentiary material beyond the scope of a bill of particulars. To the extent not objected to, see paragraph #3 for departures. 8. Plaintiff claims that the defendant violated the Patient's Bill of Rights Statu te,i~\\lffl!\~!!~t~yieam~~~::~~w\:;~~ 5'~1 f~;y(~)~::~t~~~~~i~f;~ 1 ~~f:~~:80i:j:~:ij':.,~~g)i~~fi.a5~:mr.r {r!~~~' ft~j' f <5;~1t!ge' fjsi~~~>wrhe plaintiff is not aware of any other laws which were violated by the defendant, however, plaintiff will ask the court to take judicial notice of such laws should the plaintiff become aware of same. 9. The plaintiff sustained the following injuries as a result of the defendant's negligence: anterior and posterior bladder laceration; required urinary catheter(s) for approximately one month; infected abdominal incision; incisional pain; urinary incontinence, frequency and urgency; pelvic paini pain during intercourse; hematuria; nocturia; excessive clotting during menstruation; physical pain; scarring; adhesions; emotional distress; required surgical and additional medical treatment which would not otherwise have been needed; increased likelihood of injury for future pregnancies; reduced likelihood of natural 5

6 delivery for future births; increased likelihood of small bowel obstructions and/ or other abdominal and/ or urological and/ or gastrointestinal dysfunction; required additional medical care which would not otherwise have been necessary. All ofthe injuries are permanent. 10. Plaintiff objects to this question as calling for evidentiary material beyond the scope of a bill ofparticulars. To the extent not objected to, see authorizations provided for treating physicians. 11. Plaintiff objects to this question as calling for evidentiary material beyond the scope of a bill ofparticulars. To the extent not objected to, see authoriz'ations provided for hospitals. she was substantially confined to bed for approximately three months; and she was not confined to house. 1 s. The plaintiff is not employed outside the home and ~~~~~~IDt~~-il~~ J, 14. Upon information and belief, plaintiff claims!1$j~~jlallll1a1wll~~'(:{:s' as 15. Plaintiff objects to this question as calling for evidentiary material beyond the scope of a bill of particulars. To the extent not objected to, upon information and belief, there has been no such reimbursement..6

7 J. 16. N/ A 17. Plaintiff was born on April 10, Plaintiff objects to providing a social security number in a bill of particulars. But see authorizations provided for plaintiffs social security number. 18. The plaintiff resides at 765 St. Johns Place Brooklyn, NY Plaintiff objects to this question as calling for evidentiary material beyond the scope of a bill of particulars. Plaintiff is not required to state another defendant's liability in this bill of particulars. 20. Plaintiff objects to this question as calling for evidentiary material beyond the scope of a bill of particulars, and because it is more in the form of an interrogatory and thus prohibited under CPLR S 1.'30; and because it impermissibly requires plaintiff to detail the factual basis of a claim oflack of informed consent. See Johnson v. Charow 6.'3 AD2d 668; 404 NYS2d 685 (2d Dept 1978) (details of informed consent claim need not be provided in bill of particulars.) To the extent not objected to, and not elsewhere stated, the.defendant failed to advise the patient that there was a hospital policy which would prevent them from adhering to the mother's wishes to delivery vaginally. If she had been so advised, the patient would have elected to deliver at another hospital. Further, an essential part of informed consent is consent. Defendant failed to obtain the patient's consent forthe procedure. 7

8 Further, if the defendant had advised the patient that he was going to take her to surgery regardless of her objections, she would have consented~ reducing the chances of bladder injury. Further, if the defendant had adequately explained the reasons for the urgency, she would have consented, reducing the chances of bladder injury. Further, if the defendant had discussed the possibility of induction oflabor as precursor to a possible c-section if unsuccessful, she would have opted for the former, and if necessary, the latter. 21. Plaintiff objects to this question as calling for evidentiary material beyond the scope of a bill of particulars. To the extent not objected to, see authorizations provided for treating physicians. 22.Plaintiff objects to this question as calling for evidentiary material beyond the scope of a bill ofparticulars. To the extent notobjected to, see authorizations provided for hospitals. Dated: New York, NY July 17, 2014 Yours, etc., SILVERSTEIN & BAST ) by: Michael M. Ba 217 Broadway, Suite 306 New York, NY (212)

9 To: Belair & Evans LLP Attorneys for Defendants Leonid Gorelik, MD and Metropolitan OB-GYN Associates, PC 61 Broadway, Suite 1320 New York, NY (212) Gerspach Sikoscow LLP Attorneys for Defendants Staten Island University Hospital and James J. Ducey 40 Fulton Street, Suite 1402 New York, NY (212)

10 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X RINATDRAY, Plaintiffs, -against- STATEN ISLAND UNIVERSITY HOSPITAL, LEONID GORELIK, METROPOLITAN OB-GYN ASSOCIATES, P.C. AND JAMES J. DUCEY, Defendants X Index No.: /2014 DEMAND FOR VERIFIED BILL OF PARTICULARS REGARDING AFFIRMATIVE DEFENSES PLEASE TAKE NOTICE that the plaintiffhereby demands that you serve upon The Law Offices ofsilverstein & Bast, 217 Broadway, Suite 306, New York, New York 10007, attorney for plaintiff( s ), within thirty( SO) days after service, a Verified Bill of Particulars of the allegations contained in defendant's Answer, in which defendant shall set forth and specify: REGARDING THE AFFIRMATIVE DEFENSE OF CULPABLE CONDUCT 1) A detailed statement of the act or acts of negligence, culpability, lack of care or omissions on the part of the plaintiff or patient which it will be claimed caused or contributed to the accident. (a) Set forth the time and location of the a~ts and/or omissions. 2) A statement of the degree, extent and/or proportion to which it will be claimed plaintiffs or the patient's alleged negligence contributed to the accident. REGARDING THE AFFIRMATIVE DEFENSE OF ~TICLE 16 APPORTIONMENT s) State whether it will be claimed plaintiffs or the patient's alleged negligent acts were committed and/ or omitted by plaintiff solely or jointly with other persons.

11 (a) If with other persons, set forth the names and addresses of the other persons. (b) Set forth a detailed statement of the culpable acts or omissions allegedly committed by each other person. (c) Set forth the degree, extent and/ or proportion to which it will be claimed the culpable conduct of each person contributed to the accident. (d) Set forth the time and location of each of the alleged culpable acts by each person. 4) State whether it will be alleged that the injuries and/or damages sustained by plaintiff or the patient were in any way caused, initiated, continued and/ or contributed to by any acts or omissions of plaintiff. If so, set forth: (a) A detailed statement of the acts or omissions by plaintiff which allegedly caused, initiated, continued and/ or contributed to plaintiffs injuries and/ or damages, and the manner in which the acts or omissions occurred. (b) (c) Set forth the time and exact location of the acts or omissions. Set forth the proportion, extent, degree and nature ofplaintiffs injuries to which plaintiff allegedly caused, continued or contributed. 5) If it will be claimed that any other persons caused, continued or contributed to plaintiffs injuries, set forth: (a) The names and addresses of all such persons, or, if not known, a description of such persons sufficient to identify them. (b) (c) (d) The time and location of each person's acts or omissions. The manner in which each person's acts or omissions occurred. The proportion, degree and extent it will be alleged each person caused, continued or contributed to plai11tiffs injuries.

12 REGARDING THE AFFIRMATIVE DEFENSE OF CPLR 4545 THE COLLATERAL SOURCE RULE 6) Describe the collateral sources and state the amounts defendant will claim plaintiff were reimbursed. REGARDING THE AFFIRMATIVE DEFENSE OF LACK OF JURISDICTION 7) State the basis for defense claim oflack of jurisdiction. 8) State the manner in which Defendant Leonid Gorelik became aware of this lawsuit 9) If defendant Leonid Gorelik received a Summons and Complaint, state when, how and where. REGARDING THE AFFIRMATIVE DEFENSE OF STATUTE OF LIMITATIONS 10) State the basis for Defendant's statute oflimitations defense. 11) State the basis for Leonid Gorelik's affirmative defense offailing to state a cause of action. Dated: New York, NY July 15, 2014 Law Offices of S:\1 RSTEIN&BA~T~ J clyn. Frey ttorneys for Plaintiff(s).. 17 Broadway - Suite 306 New York, NY (212)

13 ATTORNEY'S VERIFICATION Jaclyn M. Frey, an attorney duly licensed to practice law in the courts of the State ofnew York, aware of the penalties of perjury, affirms the following pursuant to CPLR 2106:. I Jaclyn M. Frey am an associate in the Law Offices of Silverstein & Bast, the attorneys for the plaintiff herein. I have read the foregoing Verified Bill of Particulars and know the contents thereof; the same is true to my own knowledge except as to the matters stated to be alleged on information and belief, an.d as to those matters I believe them to be true. The reason this verification is made by me and not by the plaintiff is because the plaintiff is not in the County where I maintain my office. The grounds of my belief as to all matters not stated upon my own knowledge are as follows; by the records maintained in this office and my conversations with witnesses. Dated: New York, New York July 15, 2014