PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT).

The Third Department determined plaintiff’s motion to amend the complaint to add a cause of action for wrongful death was properly granted. Plaintiff’s daughter died after the lawsuit had begun. She had ingested a harmful substance at a festival and the complaint alleged the failure to prevent the use of drugs at the festival and the inadequacy of medical treatment facilities at the festival. Defendants argued there was insufficient evidence of a causal link between the ingestion of the harmful substance and plaintiff’s daughter’s death:

​

… [D]efendants failed to meet their burden of demonstrating either prejudice or hindrance and, on these facts, they cannot credibly claim surprise from the proposed amendment… . Moreover, we have previously recognized that plaintiff has a viable negligence cause of action based upon allegations that decedent’s injuries were caused by defendants’ failure to ensure that she received adequate and timely emergency medical care … . Defendants have not demonstrated that the amendment, which adds a cause of action for wrongful death based upon that negligence … , is “palpably insufficient or patently devoid of merit” … .

To the extent that defendants argue that the motion for leave to amend to add a cause of action for wrongful death must be supported by competent medical proof showing a causal connection between their alleged negligence and decedent’s death, they are incorrect. Prior decisions have held that, “[w]here a plaintiff seeks to amend a complaint alleging medical malpractice to add a cause of action for wrongful death, such motion must be accompanied by ‘competent medical proof showing a causal connection between the alleged negligence and the decedent’s death'” … . Matter of Bynum v Camp Bisco, LLC, 2017 NY Slip Op 08433, Third Dept 11-30-17

 

CIVIL PROCEDURE (NEGLIGENCE, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))/COMPLAINT, AMENDMENT OF (NEGLIGENCE, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))/NEGLIGENCE (CIVIL PROCEDURE, AMEND COMPLAINT, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))/WRONGFUL DEATH (CIVIL PROCEDURE, AMEND COMPLAINT, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))