Mandelbaum v. Bogen

¶1The only possible theory of liability that may be gleaned from the moving papers is that respondents were guilty of malpractice in performing an unnecessary Caesarean operation on decedent. This may be established by the facts within petitioner’s knowledge, that decedent’s first-born, larger in size than the second, was delivered without resort to such an operation. Since all material facts are available to petitioner from the hospital records, no examination with respect thereto for the framing of a complaint is necessary. No other theory of liability for malpractice has been described. Where a party does not have a describable sense of the wrong that he thinks hurt him, he ought not “ be allowed a judicial franchise to penetrate into another party’s affairs, either by an examination or inspection, to find out whether he ought to sue or ought not to sue.” (Stewart v. Socony Vacuum Oil Co., 3 A D 2d 582, 583.) Accordingly the motion for an examination for the purpose of framing a complaint is denied. This of course is without prejudice to petitioner’s right to examine respondents after joinder of issue. Submit order.