FILED: NEW YORK COUNTY CLERK 09/13/ :22 AM INDEX NO /2014 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 09/13/2016

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1 FILED: NEW YORK COUNTY CLERK 09/13/ :22 AM INDEX NO /2014 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 09/13/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X Index No.: /2014 LILLIAN McKINNEY, Plaintiff(s), -v- VERIFIED BILL OF TURANDOT SAUL, M.D., SEBASTIAN SIADECKI, M.D., PARTICULARS MOUNT SINAI ST. LUKE'S HOSPITAL CENTER and ST. LUKE'S HOSPITAL CENTER, Defendant(s). X Plaintiff(s), by and through the undersigned attorneys, as and for the Verified Bill of Particulars in response to the demand of defendant Sebastian Siadecki, M.D., hereinafter "Defendant", set forth as follows, upon information and belief: DEMAND No. 1: State the (a) date and place of birth of plaintiff; (b) residence address of the plaintiff(s) at the time this action was commenced; (c) residence address of the plaintiff at the time of the alleged negligence; (d) dates and places of plaintiff's marriage(s); (e) full names of plaintiff's children; and, (f) social security number of plaintiff; (g) Medicare claim number RESPONSE No. 1: (a) Infant Plaintiff was born on 5/26/64 in New York City. (b) The residence address of Plaintiff(s) at the time this action was commenced was 600 W 133rd Street, New York, New York. (c) The residence address of Plaintiff(s) at the time of the alleged negligence was 600 W. 133rd Street, New York, New York. (d) Plaintiff was married on 6/6/90 to Jose Inoa and divorces in 12/ 2000 and married again to Jose McKinney on 5/2/01 (e) Plaintiff's has a daughter, Jasmine F. Inoa born onl/26/93. (f) Social Security number has already been provided in authorizations. Due to General Business Law 399-dd and the sensitive nature of Social Security numbers, such information will be provided over the telephone if requested. (g) plaintiff does not receive Medicare benefits.

2 DEMAND No. 2: Set forth a general statement of the acts or omissions of this defendant that are claimed to constitute a departure from good and accepted medical practice. RESPONSE No. 2: Generally, Defendant departed from good and accepted medical care to Plaintiff by the following: Defendant departed from good and accepted medical care to Plaintiff by the following: failure to maintain and preserve accurate records; failure to make adequate and proper consultations at timely and sufficient intervals with and refer to other doctors and specialists, including, radiologists/sonographers, anesthesiologists, infectious disease experts, cardiologists, pulmonologists, hematologists, medicine consults, surgeons, and neurologists; failure to infoim of available and acceptable medical treatment alternatives to the medical care rendered; failure to offer to refer to medical specialists who were knowledgeable of alternative medical treatment; depriving the patient of a substantial chance to avoid injury; failure to institute the chain of command when there is a clinical disagreement between the medical professionals; failure to properly screen, hire, train, monitor, instruct, and supervise the agents, employees, residents, nurses, and attendings who provided treatment; failure to provide qualified, experienced, and trained personnel to provide care; failure to have appropriate equipment and at all times immediately available in the room where treatment was provided; failure to have Doppler ultrasound equipment available; failure to promulgate and enforce rules, regulations, and protocols governing the specialties of medical care provided to and required by patients; negligent credentialing and privileging; failure to treat the patient as a high risk orthopedic case; failure to monitor the patient with more frequent post discharge outpatient visits; failure to timely and properly perform post reduction x-rays, sonograms and Doppler

3 ultrasounds; failure to timely prescribe and administer antimicrobial/antiviral medication; failure to perform appropriate differential diagnoses; failure to timely order bed rest; failure to order non weight baring failure to timely do complete blood counts; failure to admit the plaintiff for close observation ; failure to timely assess edema; failure to timely take and appreciate the significance of vital signs, failure to prescribe and administer appropriate medications; failure to accurately assess patient status over the telephone; failure to advise plaintiff to seek outpatient and inpatient evaluation and treatment; failure of the medical provider to come to the hospital to see the patient when requested; failure to recognize and manage the signs and symptoms of osteomyelitis ; failure to determine the etiology of the plaintiff's distress with differential diagnosis; failure to heed the multiple notations by the radiologist regarding the widened medial mortise, and particularly the fact that it "continued widened" after reduction of the fracture of the distal fibula; failure to appreciate the necessity for surgery to adequately stabilize the ankle; failure to order an MRI to assess the ankle; failure to to consider ligament injury along with the fracture; failure to perfoiiu surgical pinning to stabilize the ankle; failure to adequately stabilize the ankle; failure to develop a differential diagnosis of the continued widened mortise, or make any effort to adequately stabilize the ankle; failure to diagnose a fracture of the medial malleolus in addition to the lateral malleolus. failure to adequately treat the left ankle fracture by taking the plaintiff to surgery to pin it for stabilization; failure to instruct the plaintiff return in a timely manner to reassess the foot/ankle; failure to consider the significance of the continued widened mortise, failure to note that the ankle was unstable; failure to instruct the plaintiff to return to the hospital or out patient clinic to re-evaluate the ankle with x-ray studies; failure re-x-ray

4 the ankle within 48 hours after the initial cast was applied prior to her discharge from the hospital on 2/3/12; failure to have re-evaluated the plaintiff in a timely manner and with sufficient frequency to make sure she had adequate circulation which includes not only checking the sensation, cap refill, and for swelling, but includes smelling under the cast to see if any infections are developing; failure to prevent an infection from developing; negligently permitting coagulation, liquefaction and necrosis of the soft tissue overlying the medical malleolus; Failing to tell the patient to be non-weight bearing on the left; failure to consider Plaintiff's medical history as she was known to have diabetes, and already had a pressure ulcer on her left big toe; failure to take heed of signs of circulation insufficiency failure to take heed of the Plaintiff's history of the arterial calcifications due to her diabetes; DEMAND No. 3: Set forth the date(s) of this defendant's alleged negligence. RESPONSE No. 3: Defendant by and through agents, servants, and employees, actual and/or ostensible, departed from standards of good and accepted medical practice and was negligent, actually and proximately causing injury and damages to Plaintiff(s), in the medical care rendered to Plaintiff at the time Defendant undertook to attend and provide medical care to Plaintiff beginning on January 27, 2012 and continuing until March 1, 2012.; The times of such acts are better known to Defendant and are reflected in the medical records maintained by Defendant if such times were noted. DEMAND No. 4: Set forth: (a) The dates of first and last services rendered by each defendant; (b) The place or places where the services were rendered by each defendant.

5 RESPONSE No. 4: Defendant by and through agents, servants, and employees, actual and/or ostensible, departed from standards of good and accepted medical practice and was negligent, actually and proximately causing injury and damages to Plaintiff, in the medical care rendered to Plaintiff at the time Defendant undertook to attend and provide medical care for Plaintiff beginning on January and continuing until March 1, The times of such acts are better known to Defendant and are reflected in the medical records maintained by Defendants if such times were noted. Defendant provided the medical care at the facilities owned and operated by Defendant St. Luke's Roosevelt Hospital Center. Defendant's malpractice and negligence occurred throughout the facilities including, but not limited to, the patient rooms, examination rooms, discharge areas, emergency department, operating rooms and radiology department. DEMAND No. 5: If plaintiff(s) charges this defendant with a misdiagnosis, identify the alleged misdiagnosis and set forth the diagnosis claimed to be the proper one. RESPONSE No. 5: Plaintiff objects to this question as being overly broad and beyond the scope of Bill of Particulars. It calls for expert opinions and evidentiary materials. Furthermore, it is repetitious to the extent that this demand has been addressed elsewhere in the demands and responses to the Bill of Particulars. Further, the complaints, signs, and/or symptoms of the patients and the diagnoses made, treatments afforded, drugs and dosages administered, and tests taken or not taken by Defendant are better known to Defendant and are reflected in the medical records maintained by Defendant if such were noted. Even further, Defendant also knows whether complaints, signs, and/or symptoms were ignored, diagnoses were made erroneously, treatment was afforded improperly,

6 drugs were administered improperly and/or contraindicated, incorrect dosages were administered, and tests were failed to be taken or taken improperly. Notwithstanding Plaintiff's objections noted above, Plaintiff repeats and realleges all allegations of negligence set forth in this Bill of Particulars. DEMAND No. 6: If plaintiff(s) charges this defendant with having failed to administer a diagnostic test or procedure, state the test or diagnostic procedure claimed to have been required and when and where each test or diagnostic procedure should have been perfouued. RESPONSE No. 6: Plaintiff objects to this question as being overly broad and beyond the scope of the Bill of Particulars. It calls for expert opinions and evidentiary materials. Furthermore, it is repetitious to the extent that this demand has been addressed elsewhere in the demands and response to the Bill of Particulars. Notwithstanding Plaintiff's objection noted above, Plaintiff repeats and realleges all allegations of negligence set forth in this Bill of Particulars. DEMAND No. 7: If plaintiff(s) charges this defendant with having failed to administer a particular course of therapy, state the medicines, treatments and surgical procedures claimed to have been required and when and where each should have been administered or performed. RESPONSE No. 7: Plaintiff objects to this question as being overly broad and beyond the scope of the Bill of Particulars. It calls for expert opinions and evidentiary materials. Furthermore, it is repetitious to the extent that this demand has been addressed elsewhere in the demands and response to the Bill of Particulars. Notwithstanding Plaintiff's objection noted above, Plaintiff repeats and realleges all allegations of negligence set forth in this Bill of Particulars..

7 DEMAND No. 8: If plaintiff(s) charges this defendant with having administered contraindicated medicines, treatments, tests and/or surgical procedures, identify each and the conditions existing which, it is claimed, contraindicated the medicine, treatment, test and/or surgical procedure. RESPONSE No. 8: Plaintiff objects to this question as being overly broad and beyond the scope of the Bill of Particulars. It calls for expert opinions and evidentiary materials. Furthermore, it is repetitious to the extent that this demand has been addressed elsewhere in the demands and response to the Bill of Particulars. Notwithstanding Plaintiff's objection noted above, Plaintiff repeats and realleges all allegations of negligence set forth in this Bill of Particulars. DEMAND No. 9: If plaintiff(s) charges this defendant with negligently having administered a medicine, treatment, test or surgical procedure, identify each so claimed and set forth the manner in which the technique employed by this defendant departed from such standards. RESPONSE No. 9: Plaintiff objects to this question as being overly broad and beyond the scope of the Bill of Particulars. It calls for expert opinions and evidentiary materials. Furthermore, it is repetitious to the extent that this demand has been addressed elsewhere in the demands and response to the Bill of Particulars. Notwithstanding Plaintiff's objection noted above, Plaintiff repeats and realleges all allegations of negligence set forth in this Bill of Particulars. DEMAND No. 10: If any special damages are claimed as a result of the alleged negligence, set forth, including but not limited to, the following: (a) The charges for the any and all hospitalizations, separately listing each hospital bill; (b) Physicians' charges; (c) Charges for medicines, itemizing the medicines charged for; (d) Nursing charges; and, (e) Specify by category and amount any other special damages claimed.

8 RESPONSE No. 10: Past and future economic damages are claimed by Plaintiff(s) as set out below: Damages from the date of injury to present including medical care, equipment, custodial care, and extraordinary care have not been ascertained fully at this time as liens are not fully known and will not be known until the time of trial. Under information and belief, all of these services were provided under Medicare, Magna Care/ Cross Health Management and Teamsters Local 210 for which authorizations have been provided. Defendant may assume that these damages do not exceed $750, There have been no out-of-pocket expenses to date. Future medical, therapy, and assisted living costs (future economic losses): Plaintiff will require and/or benefit from the following based on injury to Plaintiff caused by Defendant's negligence: Items of Future Needs Physical and Occupational Therapy Medication and Medical Equipment Home Care/Assistance Annual Cost Not to Exceed $ 50, $ 25, $150, Said amounts are annual amounts based on today's costs and will increase by the inflation/growth rates on future economic losses set forth below: Overall medical care services: 4.5% Medications (prescriptions): 4.0% Medications (prescriptions and over-the-counter): 3.0% Professional services (physicians and therapies): 3.5% Equipment and supplies: 2.5% Home aides: 3.0% Home care by registered nurses: 3.5% Group home: 4.0% The sources of the projections are based on the historical average inflation rates in the medical care category of the consumer price index as published by the United States

9 Bureau of Labor Statistics in their Consumer Price Index Detailed Report. The equipment and supplies inflation rate is based on the historical average inflation (consumer price index) rate. The home aide inflation rate is based on the general historical growth rate. Plaintiff will not be able to work due to injuries sustained as a result of Defendant's negligence, will never be able to engage in meaningful employment. Plaintiff claims future loss of earnings/loss of earning ability. Plaintiff has sustained damages by reason of loss of earnings ability as a result of Defendant's negligence. As a result of injury caused by Defendant's negligence, Infant Plaintiff will earn less, which amounts are set out below. The jury will be asked to assess the full damages for loss of earnings based upon these government statutes/statistics: Minimum wage: $15, in 2009 Earnings per year based on education in 2008 dollars: Female: High School Non-Graduate: $14, High School Graduate: $24, Year College: $32, Year College: $44, The source for minimum wage is the Federal and State of New York minimum wage of $7.25 per hour in The source for earnings per year is based on the United States Bureau of Labor Statistics and Census Bureau publication PINC-04. Educational Attainment People 18 Years Old and Over, by Total Money Earnings in Worklife Expectancy: Female: High School Non-Graduate: 25.8 years High School Graduate: 32.3 years 2-Year College: 33.9 years 4-Year College: 34.1 years

10 The source for work life expectancy is based on Journal of Legal Economics, Earnings growth rate: 3.0% per year The source for earnings growth rate is based on the historical average increase rates in wages and salaries: 2010 Economic Report of the President Table B-48. Plaintiff will offer proof that these damages will increase by the earnings growth rate over Infant Plaintiff's work life. DEMAND No. 11: Pursuant to CPLR 4545, identify the party who paid the damages claimed in paragraph 10 above, including the relationship of the plaintiff(s) to that party. If the third party payments were made as a result of reimbursements through an insurance company, set forth the complete name and address of the company, the complete name of the person in whose name the policy was issued, and the policy number. RESPONSE No. 11: Collateral source authorizations have been provided. DEMAND-No. 12: Identify by name and/or by stating the nature and date and approximate time of treatment or service provided by each and every member or employee of defendant that plaintiff(s) will claim negligently administered treatment. RESPONSE No. 12: At all relevant times, while a patient of Defendant's, those persons who provided medical care to Plaintiff were agents, servants, and/or employees, actual and/or ostensible, of Defendant and or St. Luke's Roosevelt Hospital Center; and held themselves out to be agents, servants, and/or employees, actual and/or ostensible, of Defendant and/or St. Luke's Roosevelt Hospital Center and as such, should be estopped from denying such agency exists. The exact names of such individuals responsive to this demand are within the possession of Defendants and are reflected in the medical records of Plaintiff. DEMAND No. 13: If plaintiff(s) claims that the injuries alleged herein were caused, in whole or in part, by the use of a defective, inappropriate or insufficient piece of equipment or instrument, identify each and every item so claimed and set forth those facts that support said allegations.

11 RESPONSE No. 13: Plaintiff objects to this question as being overly broad and beyond the scope of Bill of Particulars. It calls for expert opinions and evidentiary materials. Furthermore, it is repetitious to the extent that this demand has been addressed elsewhere in the demands and responses to the Bill of Particulars. Further, the use of improper or defective equipment made by Defendant is better known to Defendant. Even further, Defendant also knows whether the equipment used was defective and/or negligently used. Notwithstanding Plaintiff's objections noted above, Plaintiff repeats and realleges all allegations of negligence set forth in this Bill of Particulars. DEMAND No. 14: Set forth the full names and addresses of each and every person that plaintiff(s) will claim, at the time of trial, observed this defendant's acts of alleged malpractice. RESPONSE No. 14: Defendant(s) and certain persons on the staff of Defendant(s), whose identities have not yet been detemiined, may have been witnesses in this case. DEMAND No. 15: If plaintiff(s) charges this defendant with lack of informed consent, set forth and describe: (a) That aspect of defendant's treatment which it will be claimed exposed plaintiffs to material risks sufficient to require disclosure; (b) Identify each risk or danger of defendant's treatment which it will be claimed should have been, but was not, disclosed by this defendant; (c) State in what respect plaintiff(s) will claim this defendant's disclosure was unreasonably inadequate; (d) State what course of treatment would plaintiff have chosen if this defendant reasonably disclosed the material risks of the treatment administered; (e) Set forth what available alternative choices of treatment could have been administered but were not disclosed and describe each alternative; (f) Set forth the date on which plaintiff(s) claims this defendant should have obtained an informed consent; and, (g) Identify by name and corresponding position with the defendant each and every employee or agent of said defendant whom plaintiff(s) charges with having failed to obtain an informed consent. RESPONSE No. 15: The procedures were improper reduction, casting and splinting of a distal fibular fracture with medial mortise widening with arterial calcifications.

12 Defendant was negligent in failing to obtain the infoiined consent of patient in failing to advise patients of all the potential risks, hazards, and consequences of the procedures and treatments rendered, in failing to promptly inform patients of patient's condition; and in holding out and representing to patients that Defendant possessed the necessary training, expertise, and experience to deliver and/or render care to Infant Plaintiff without unusual risks and dangers, when, in fact, it did not have same. Had the risks of the procedures and treatments been disclosed, patients would have elected a course of treatment, which included timely and proper monitoring, diagnoses, perfoiivance of procedures and treatments, and medication administration. Patients made no assurances to Defendant or others regarding their infolined consent. DEMAND No. 16: Set forth the full names and addresses of each and every physician from whom the infant-plaintiff has ever received medical treatment, prior to the alleged malpractice, from the time of birth, with dates of treatment. RESPONSE No. 16: Plaintiff objects to this demand as overbroad, vague and ambiguous. Notwithstanding this objection, authorizations for plaintiffs prior medical providers has been provided under separate cover. Plaintiff's Primary Care Providers prior to the malpractice herein were Lewis Black, M.D. and Craig Norbert, M.D., (St Luke's). DEMAND No. 17: Set forth the full names and addresses of each and every hospital, institution, facility or clinic in which the infant-plaintiff has ever received medical treatment, prior to the alleged malpractice, from the time of birth, for any injury, illness or other condition with dates of confinement or outpatient treatment. RESPONSE No. 17: See response to No. 16. DEMAND No. 18: Set forth the nature and condition for which the infant plaintiff sought and accepted the medical treatment rendered by this defendant.

13 RESPONSE No. 18: Defendant undertook emergency orthopedic care from this defendant.. DEMAND No. 19: The nature, location, extent and duration of each injury which, it will be claimed, was caused by the negligence of this defendant. If any injuries are claimed to be permanent, specify each so claimed. RESPONSE No. 19: Defendant's negligence and departures from standards of good and accepted medical practice and negligence as alleged herein were each and all an actual and proximate cause of the following pennanent injuries to Plaintiff: open fracture of the left ankle with decreased distal pulses bilaterally, osteomyelitis, elevated white blood cell count; open ankle fracture draining pus with bone visible, need for IV antibiotics, a below the ankle amputation of the left foot, physical and emotional pain, depression, need for physical therapy; need for prosthetics, central nervous system injury, inability to live independently, diminished earning capacity, and loss of enjoyment of life DEMAND No. 20: Set forth the fall name and address of each and every subsequent treating physician from whom medical treatment or consultation was sought by the plaintiff by reason of the injuries allegedly sustained. RESPONSE No. 20: The names and addresses of health providers that treated Plaintiff are set forth in the Response to Demand for Authorizations and authorizations have been provided. The dates of confinement or outpatient treatment in which Plaintiff necessitated treatment are contained in their records and authorizations have been provided. DEMAND No. 21: Set forth full name address of each and every physician seen by plaintiff patient for consultation, physical examination and or medical tests at the direction or referral of legal counsel. Set forth dates of each such examination or treatment.

14 RESPONSE No. 21: Plaintiff objects to this question as being overly broad and beyond the scope of Bill of Particulars. It calls for expert opinions and evidentiary materials. Plaintiff(s) will respond pursuant to C.P.L.R. 3101(d) as and when experts are retained. DEMAND No.22: Set forth each and every condition which plaintiff(s) claim this defendant exacerbated. RESPONSE No. 22: Plaintiff objects to this question as being overly broad and beyond the scope of the Bill of Particulars. It calls for expert opinions and evidentiary materials. Furthermore, it is repetitious to the extent that this demand has been addressed elsewhere in the demands and response to the Bill of Particulars. Notwithstanding Plaintiff's objections noted above, Plaintiff repeats and realleges all allegations of negligence set forth in this Bill of Particulars, and more specifically, see Response No. 2 and Response No. 19. DEMAND No. 23: If it will be claimed that the aforesaid injuries necessitated any hospitalizations of plaintiff, set forth the name and address of each hospital with dates of confinement or outpatient treatment. RESPONSE No. 23: Plaintiff objects to this question as being overly broad and beyond the scope of the Bill of Particulars. It calls for expert opinions and evidentiary materials. Furtheiniore, it is repetitious to the extent that this demand has been addressed elsewhere in the demands and response to the Bill of Particulars. DEMAND No. 24: If it will be claimed that the aforesaid injuries necessitated treatment at any other institutions, set forth the name and address of each institution with dates of confinement. RESPONSE No. 24: Plaintiff objects to this question as being overly broad and beyond the scope of the Bill of Particulars. It calls for expert opinions and evidentiary materials. Furthermore, it is repetitious to the extent that this demand has been addressed elsewhere in the demands and response to the Bill of Particulars.

15 DEMAND No. 25: If it will be claimed that the aforesaid injuries necessitated confinement to bed or home, set forth the following: (a) The dates of confinement to home; (b) The dates of confinement to bed. RESPONSE No. 25: Plaintiff is permanently disabled and requires constant attention and care. It is not feasible at this time to characterize Plaintiff's confinement to home or bed. DEMAND No. 26: If loss of earnings is claimed as a result of the alleged negligence set forth the following: (a) The name and address of the plaintiff's employer at the time of the alleged negligence; (b) The capacity in which plaintiff was employed; (c) Plaintiff's earnings for the year prior to the alleged negligence; (d) The last date plaintiff worked prior to the alleged negligence; (e) The name and address of plaintiff's present employer, and; (f) Loss of earnings claimed RESPONSE No. 26: Plaintiff was disabled and not employed at the time of the alleged negligence. DEMAND No. 27: If it will be claimed that the aforesaid injuries necessitated any special education, emotional, or vocational training or schooling, set forth the name and address of each organization and the dates. RESPONSE No. 27: Plaintiff objects to this question as being overly broad and beyond the scope of the Bill of Particulars. It calls for expert opinions and evidentiary materials. Furthermore, it is repetitious to the extent that this demand has been addressed elsewhere in the demands and response to the Bill of Particulars. Notwithstanding Plaintiff s objections noted above, Plaintiff repeats and realleges all allegations of negligence set forth in this Bill of Particulars, and more specifically, see Response No. 19. DEMAND No. 28: Set forth the full caption of each and every lawsuit brought on behalf of the infant plaintiff to recover damages for any connected or aggravated injuries

16 allegedly caused and sustained by reason of the acts of one or more preceding, joint, concurrent and/or succeeding toitfeasors, including: (a) Court; (b) Index Number; (c) Calendar Number; (d) Names and addresses of all litigants; (e) Names and addresses of all attorneys appearing for litigants; (f) Status of lawsuit: (i) if noticed for trial, specify the date; (ii) if settled, annex a copy of each release delivered indicating the amounts contributed by each defendant; (iii)if discontinued without payment, annex a copy of each stipulation so delivered to each defendant; (iv)if tried, annex a copy of the judgment with notice of entry; and, (v) if judgment was satisfied, set forth date and amount of payment and annex a copy of the satisfaction of judgment. RESPONSE No. 28: There has never been a lawsuit brought on Infant Plaintiff's behalf to recover damages for any connected or aggravated injuries allegedly caused and sustained by reason of the acts of one or more preceding, joint, concurrent, and/or succeeding tort feasors. DEMAND No. 29: If it is claimed that the defendant violated or departed from the terms of any statutes, laws or ordinances, set forth the specific statute, law or ordinance alleged to have been violated or from which departure is claimed and the specific acts and/or omissions alleged to be the basis for the claim of violation or departure, including dates, times and places of all such acts and/or omissions. RESPONSE No. 29: Plaintiff objects to this question as being overly broad, unduly burdensome, and beyond the scope of Bill of Particulars. It calls for expert opinions and evidentiary materials. Notwithstanding said objection, Defendant violated Title 10, Department of Health, of the New York Codes, Rules and Regulations; The Emergency Medical Treatment and Labor Act, Consolidated Omnibus Budget Reconciliation Act of 1985, at 42 U.S.C. 1395dd; 42 C.F.R et seq., et seq., and et seq.; and the rules and regulations of Defendant Hospital, which are better known to Defendant.

17 The right to supplement any and all responses at the completion of discovery is reserved by Plaintiff(s). Dated: Yonkers, New York August 27, 2014 R 'eager% 7), 'Mite& To: Aaronson, Rappaport, Feinstein & Deutsch, L.L.P. Attorneys for Defendant(s) 600 Third Avenue New York, New York Tel: (212) Fax: (212) The Fitzgerald Law Finn, P.C. Attorneys for Plaintiff(s) By: Kenneth P. Morelli, Esq. 538 Riverdale Avenue Yonkers, New York Tel: (914) Fax: (914) File No.: F13148

18 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LILLIAN Mc -v- Plaintiff(s), TURANDOT SAUL, M.D., SEBASTIAN SIADECKI, M.D., MOUNT SINAI ST. LUKE'S HOSPITAL CENTER and ST. LUKE'S HOSPITAL CENTER, Defendant(s). X Index No.: /2014 VERIFIED BILL OF PARTICULARS The Fitzgerald Law Firm, P.C. Attorneys.for Plaintiffs) 538 Riverdale Avenue Yonkers, New York Tel: (914) Fax: (914) Certification Pursuant to 22 NYCRR a(b) I hereby certify pursuant to 22 NYCRR a(b) that, to the best of my knowledge, information and belief, formed after an inquiry reasonably under the circumstances, the presentation of the papers herein or the contentions therein are not frivolous as defined in 22 NYCRR (c). R-emfter% P. vow& The Fitzgerald Law Firm, P.C. Attorneys for Plaintiffs) By: Kenneth P. Morelli, Esq.

19 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X Index No /2014 LILLIAN McKINNEY, Plaintiff(s), -v- VERIFIED BILL OF TURANDOT SAUL, M.D., SEBASTIAN SIADECKI, M.D., PARTICULARS MOUNT SINAI ST. LUKE'S HOSPITAL CENTER and ST. LUKE'S HOSPITAL CENTER, DefencL9nt(s). Plaintiff(s), by and through the undersigned attorneys, as and for the Verified Bill of Particulars in response to the demand of defendant Turandot Saul. M.D., hereinafter "Defendant", set forth as follows, upon information and belief: DEMAND No. 1: State the (a) date and place of birth of plaintiff; (b) residence address of the plaintiff(s) at the time this action was commenced; (c) residence address of the plaintiff at the time of the alleged negligence; (d) dates and places of plaintiff's marriage(s); (e) full names of plaintiff's children; and, (f) social security number of plaintiff; (g) Medicare claim number RESPONSE Ni. 1: (a) Infant Plaintiff was bom on 5/26/64 In New York City. (b) The residence address of Plaintiff(s) at the time this action was commenced was 600 W 133rd Street, New York, New York. (c) The residence address of Plaintiff(s) at the time of the alleged negligence was 600 W. 133rd Street, New York, New York. (d) Plaintiff was married to Jose Inoa on 6/6/90 and divorced in 12/2000; and again to Jose McKinney on 5/2/01. (e) Plaintiff's has a daughter Jasmine F. Inoa born on 1/26/93. (f) Social Security number has already been provided in authorizations. Due to General. Business Law 399-dd and the sensitive nature of Social Security numbers, such information will be provided over the telephone if requested. (g) plaintiff does not receive Medicare benefits.

20 DEMAND No. 2: Set forth a general statement of the acts or omissions of this defendant that are claimed to constitute a departure from good and accepted medical practice. RESPONSE No. 2: Generally, Defendant departed from good and accepted medical care to Plaintiff by the following: Defendant departed from good and accepted medical care to Plaintiff by the following: failure to maintain and preserve accurate records; failure to make adequate and proper consultations at timely and sufficient intervals with and refer to other doctors and specialists, including, radiologists/sonographers, anesthesiologists, infectious disease experts, cardiologists, pulmonologists, hematologists, medicine consults, surgeons, and neurologists; failure to inform of available and acceptable medical treatment alternatives to the medical care rendered; failure to offer to refer to medical specialists who were knowledgeable of alternative medical treatment; depriving the patient of a substantial chance to avoid injury; failure to institute the chain of command when there is a clinical disagreement between the medical professionals; failure to properly screen, hire, train, monitor, instruct, and supervise the agents, employees, residents, nurses, and attendings who provided treatment; failure to provide qualified, experienced, and trained personnel to provide care; failure to have appropriate equipment and at all times immediately available in the room where treatment was provided; failure to have Doppler ultrasound equipment available; failure to promulgate and enforce rules, regulations, and protocols governing the specialties of medical care provided to and required by patients; negligent credentialing and privileging; failure to treat the patient as a high risk orthopedic case; failure to monitor the patient with more frequent post discharge outpatient visits; failure to timely and properly perform post reduction x-rays, sonograms and Doppler

21 ultrasounds; failure to timely prescribe and administer antimicrobial/antiviral medication; failure to perform appropriate differential diagnoses; failure to timely order bed rest; failure to order non weight baring failure to timely do complete blood counts; failure to admit the plaintiff for close observation ; failure to timely assess edema; failure to timely take and appreciate the significance of vital signs, failure to prescribe and administer appropriate medications; failure to accurately assess patient status over the telephone; failure to advise plaintiff to seek outpatient and inpatient evaluation and treatment; failure of the medical provider to come to the hospital to see the patient when requested; failure to recognize and manage the signs and symptoms of osteomyelitis ; failure to determine the etiology of the plaintiff's distress with differential diagnosis; failure to heed the multiple notations by the radiologist regarding the widened medial mortise, and particularly the fact that it "continued widened" after reduction of the fracture of the distal fibula; failure to appreciate the necessity for surgery to adequately stabilize the ankle; failure to order an 114R1 to assess the ankle; failure to to consider ligament injury along with the fracture; failure to perform surgical pinning to stabilize the ankle; failure to adequately stabilize the ankle; failure to develop a differential diagnosis of the continued widened mortise, or make any effort to adequately stabilize the ankle; failure to diagnose a fracture of the medial malieolus in addition to the lateral malleolus_ failure to adequately treat the left ankle fracture by taking the plaintiff to surgery to pin it for stabilization; failure to instruct the plaintiff return in a timely manner to reassess the foot/ankle; failure to consider the significance of the continued widened mortise, failure to note that the ankle was unstable; failure to instruct the plaintiff to return to the hospital or out patient clinic to re-evaluate the ankle with x-ray studies; failure re-x-ray

22 the ankle within 48 hours after the initial cast was applied prior to her discharge from the hospital on 2/3/12; failure to have re-evaluated the plaintiff in a timely mariner and with sufficient frequency to make sure she had adequate circulation which includes not only checking the sensation, cap refill, and. for swelling, but includes smelling under the cast to see if any infections are developing; failure to prevent an infection from developing; negligently permitting coagulation, liquefaction and necrosis of the soft tissue overlying the medical malleolus; Failing to tell the patient to be non-weight bearing on the left; failure to consider Plaintiff's medical history as she was known to have diabetes, and already had a pressure ulcer On her left big toe; failure to take heed of signs of circulation insufficiency failure to take heed of the Plaintiff's history of the arterial calcifications due to her diabetes; DEMAND No. 3: Set forth the date(s) of this defendant's alleged negligence. RESPONSE No. 3: Defendant by and through agents, servants, and employees, actual and/or ostensible, departed from standards of good arid accepted medical practice and was negligent, actually and proximately causing injury and damages to Plaintiffs), in the medical care rendered to Plaintiff at the time Defendant undertook to attend and provide medical care to Plaintiff beginning on January 27, 2012 and continuing until March 1, 2012.; The times of such acts are better known to Defendant and are reflected in the medical records maintained by Defendant if such times were noted. DEMAND No. 4: Set forth: (a) The dates of first and last services rendered by each defendant; (b) The place or places where the services were rendered by each defendant.

23 RESPONSE No. 4: Defendant by and through agents, servants, and employees, actual and/or ostensible, departed from standards of good and accepted medical practice and was negligent, actually and proximately causing injury and damages to Plaintiff, in the medical care rendered to Plaintiff at the time Defendant undertook to attend and provide medical care for Plaintiff beginning on January and continuing until March 1, The times of such acts are better known to Defendant and are reflected in the medical records maintained by Defendants if such times were noted. Defendant provided the medical care at the facilities owned and operated by Defendant St. Luke's Roosevelt Hospital Center. Defendant's malpractice and negligence occurred throughout the facilities including, but not limited to, the patient rooms, examination rooms, discharge areas, emergency department, operating rooms and radiology department. DEMAND No. 5: If plaintiff(s) charges this defendant with a misdiagnosis, identify the alleged misdiagnosis and set forth the diagnosis claimed to be the proper one. RESPONSE No. 5: Plaintiff objects to this question as being overly broad and beyond the scope of Bill of Particulars. It calls for expert opinions and evidentiary materials. Furthermore, it is repetitious to the extent that this demand has been addressed elsewhere in the demands and responses to the Bill of Particulars. Further, the complaints, signs, and/or symptoms of the patients and the diagnoses made, treatments afforded, drugs and dosages administered, and tests taken or not taken by Defendant are better known to Defendant and are reflected in the medical records maintained by Defendant if such were noted. Even further, Defendant also knows whether complaints, signs, and/or symptoms were ignored, diagnoses were made erroneously, treatment was afforded improperly, drugs were administered improperly and/or contraindicated, incorrect dosages were

24 the conditions existing which, it is claimed, contraindicated the medicine, treatment, test and/or surgical procedure. RESPONSE No. 8: Plaintiff objects to this question as being overly broad and beyond the scope of the Bill of Particulars. It calls for expert opinions and evidentiary materials. Furthermore, it is -repetitious to the extent that this demand has been addressed elsewhere in the demands and response to the Bill of Particulars. Notwithstanding Plaintiff's objection noted above, Plaintiff repeats and realleges all allegations of negligence set forth in this Bill of Particulars. DEMAND No. 9: If plaintiff(s) charges this defendant with negligently having administered a medicine, treatment, test or surgical procedure, identify each so claimed and set forth the manner in which the technique employed by this defendant departed from such standards. RESPONSE No. 9: Plaintiff objects to this question as being overly broad and beyond the scope of the Bill of Particulars. It calls for expert opinions and evidentiary materials. Furthermore, it is repetitious to the extent that this demand has been addressed elsewhere in the demands and response to the Bill of Particulars. Notwithstanding Plaintiff's objection noted above, Plaintiff repeats and realleges all allegations of negligence set forth in this Bill of Particulars. DEMAND No. 10: If any special damages are claimed as a result of the alleged negligence, set forth, including but not limited to, the following: (a) The charges for the any and all hospitalizations, separately listing each hospital bill; (b) Physicians' charges; (c) Charges for medicines, itemizing the medicines charged for; (d) Nursing charges; and, (e) Specify by category and amount any other special damages claimed. RESPONSE No. 10: Past and future economic damages are claimed by Plaintiff(s) as set out below:

25 Damages from the date of injury to present including medical care, equipment, custodial care, and extraordinary care have not been ascertained fully at this time as liens are not fatly known and will not be known until the tirne of trial. Under information and belief, all of these services were provided under Medicare, Magna Care/ Cross health Management and Teamsters Local 201 for which authorizations have been provided. Defendant may assume that these damages do not exceed $750, There have been no out-of-pocket expenses to date. Future medical, therapy, and assisted living costs (future economic losses): Plaintiff will require and/or benefit from the following based on injury to Plaintiff caused by Defendant's negligence: Items of Future Needs Annual Cost Not to Exceed Physical and Occupational Therapy $ 50, Medication and Medical Equipment $ 25, Home Care/Assistance $150, Said amounts are annual amounts based on today's costs and will increase by the inflation/growth rates on future economic losses set forth below: Overall medical care services: 4.5% Medications (prescriptions): 4.0% Medications (prescriptions and over-the-counter): 3.0% Professional services (physicians and therapies): 3.5% Equipment and supplies: 2.5% Home aides: 3.0% Home care by registered nurses: 3.5% Group home: 4.0% The sources of the projections are based on the historical average inflation rates in the medical care category of the consumer price index as published by the United States Bureau of Labor Statistics in their Consumer Price Index Detailed Report. The equipment and supplies inflation rate is based on the historical average inflation

26 (consumer price index) rate. The home aide inflation rate is based on the general historical growth rate. Plaintiff will not be able to work due to injuries sustained as a result of Defendant's negligence, will never be able to engage in meaningful employment. Plaintiff claims future loss of earnings/loss of earning ability. Plaintiff has sustained damages by reason of loss of earnings ability as a result of Defendant's negligence. As a result of injury caused by Defendant's negligence, Infant Plaintiff will earn less, which amounts are set out below. The jury will be asked to assess the full damages for loss of earnings based upon these government statutes/statistics: Minimum wage: $15, in 2009 Earnings per year based on education in 2008 dollars: Female: High School Non-Graduate: $14, High School Graduate: $24, Year. College: $32, Year College: $44, The source for minimum wage is the Federal and State of New York minimum wage of $7.25 per hour in The source for earnings per year is based on the United States Bureau of Labor Statistics and Census Bureau publication PINC-04, Educational Attainment-- People 18 Years Old and Over, by Total Money Earnings in Worklife Expectancy: Female: High School Non-Graduate: 25.8 years High School Graduate: 32.3 years 2-Year College: 33.9 years 4-Year College: 34.1 years The source for work life expectancy is based on Journal of Legal Economics,

27 Earnings growth rate: 3.0% per year The source for earnings growth rate is based on the historical average increase rates in wages and salaries: 2010 Economic Report of the President Table B-48. Plaintiff will offer proof that these damages will increase by the earnings growth rate over Infant Plaintiffs work life. DEMAND No. 11: Pursuant to CPLR 4545, identify the party who paid the damages claimed in paragraph 10 above, including the relationship of the plaintiffs} to that party. If the third party payments were made as a result of reimbursements through an insurance company, set forth the complete name and address of the company, the complete name of the person in whose name the policy was issued, and the policy number. RESPONSE No. 11: Collateral source authorizations have been provided_ DEMAND No. 12: Identify by name and/or by stating the nature and date and approximate time of treatment or service provided by each and every member or employee of defendant that plaintiff(s) will claim negligently administered treatment. RESPONSE No. 12: At all relevant times, while a patient of Defendant's, those persons who provided medical care to Plaintiff were agents, servants, and/or employees, actual and/or ostensible, of Defendant and or St Luke's Roosevelt Hospital Center; and held themselves out to be agents, servants, and/or employees, actual and/or ostensible, of Defendant and/or St. Luke's Roosevelt Hospital Center and as such, should be estopped from denying such agency exists. The exact names of such individuals responsive to this demand are within the possession of Defendants and are reflected in the medical records of Plaintiff. DEMAND No. 13: If plaintiff(s) claims that the injuries alleged herein were caused, in whole or in part, by the use of a defective, inappropriate or insufficient piece of equipment or instrument, identify each and every item so claimed and set forth those facts that support said allegations. RESPONSE No. 13: Plaintiff objects to this question as being overly broad and beyond the scope of Bill of Particulars. It calls for expert opinions and evidentiary materials.

28 Furthermore, it is repetitious to the extent that this demand has been addressed elsewhere in the demands and responses to the Bill of Particulars. Further, the use of improper or defective equipment made by Defendant is better known to Defendant. Even further, Defendant also knows whether the equipment used was defective and/or negligently used. Notwithstanding Plaintiff's objections noted above, Plaintiff repeats and realleges all allegations of negligence set forth in this Bill of Particulars. DEMAND No. 14: Set forth the full names and addresses of each and every person that plaintiff(s) will claim, at the time of trial, observed this defendant's acts of alleged malpractice. RESPONSE No. 14: Defendant(s) and certain persons on the staff of Defendant(s), whose identities have not yet been determined, may have been witnesses in this case. DEMAND No. 15: If plaintiff(s) charges this defendant with lack of informed consent, set forth and describe: (a) That aspect of defendant's treatment which it will be claimed exposed plaintiffs to material risks sufficient to require disclosure; (b) Identify each risk or danger of defendant's treatment which it will be claimed should have been, but was not, disclosed by this defendant; (c) State in what respect plaintiff(s) will claim this defendant's disclosure was unreasonably inadequate; (d) State what course of treatment would plaintiff have chosen if this defendant reasonably disclosed the material risks of the treatment administered; (e) Set forth what available alternative choices of treatment could have been administered but were not disclosed and describe each alternative; (f) Set forth the date on which plaintiff(s) claims this defendant should have obtained an, informed consent; and, (g) Identify by name and corresponding position with the defendant each and every employee or agent of said defendant whom plaintiff(s) charges with having failed to obtain an informed consent. RESPONSE No. 15: The procedures were improper reduction, casting and splinting of a distal fibular fracture with medial mortise widening with arterial calcifications. Defendant was negligent in failing to obtain the informed consent of patient in failing to advise patients of all the potential risks, hazards, and consequences of the procedures and