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CONTINUOUS TREATMENT TOLLS THE STATUTE OF LIMITATIONS IN A MEDICAL MALPRACTICE ACTION WHEN THE INITIAL ERRONEOUS DIAGNOSIS IS OUTSIDE THE STATUTE AND THE CONTINUED TREATMENT WAS BY OTHER DOCTORS IN THE GROUP.

The Second Department determined there was a question of fact whether the continuous treatment doctrine applied to render this medical malpractice action timely. The court noted that the doctrine applies when the allegedly incorrect diagnosis occurred outside the statute of limitations and the continued treatment is not by the original doctor, but by other doctors in the group:

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The continuous treatment doctrine tolls the statute of limitations for medical malpractice actions when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint … .  With respect to failure-to-diagnose cases, a physician “cannot escape liability under the continuous treatment doctrine merely because of a failure to make a correct diagnosis as to the underlying condition, where [he or she] treated the patient continuously over the relevant time period for symptoms that are ultimately traced to that condition” … . The continuous treatment doctrine may be applied to a physician who has left a medical practice by imputing to him or her the continued treatment provided by subsequent treating physicians in that practice … . Matthews v Barrau, 2017 NY Slip Op 03738, 2nd Dept 5-10-17

NEGLIGENCE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT TOLLS THE STATUTE OF LIMITATIONS IN A MEDICAL MALPRACTICE ACTION EVEN WHEN THE INITIAL ERRONEOUS DIAGNOSIS IS OUTSIDE THE STATUTE AND THE CONTINUED TREATMENT WAS BY OTHER DOCTORS IN THE GROUP)/MEDICAL MALPRACTICE (CONTINUOUS TREATMENT DOCTRINE, CONTINUOUS TREATMENT TOLLS THE STATUTE OF LIMITATIONS IN A MEDICAL MALPRACTICE ACTION EVEN WHEN THE INITIAL ERRONEOUS DIAGNOSIS IS OUTSIDE THE STATUTE AND THE CONTINUED TREATMENT WAS BY OTHER DOCTORS IN THE GROUP)/CONTINUOUS TREATMENT DOCTRINE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT TOLLS THE STATUTE OF LIMITATIONS IN A MEDICAL MALPRACTICE ACTION EVEN WHEN THE INITIAL ERRONEOUS DIAGNOSIS IS OUTSIDE THE STATUTE AND THE CONTINUED TREATMENT WAS BY OTHER DOCTORS IN THE GROUP)

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PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT.

The Second Department determined defendant doctors’ motion for summary judgment in this orthopedic surgery medical malpractice action was properly granted. Plaintiff’s expert was a radiologist and did not demonstrate familiarity with the standard of care for orthopedic surgeons:

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… [W]here, as here, ” a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered'” … . The plaintiff’s expert, a board-certified radiologist, did not indicate any familiarity with the standards of orthopedic care. Donnelly v Parikh, 2017 NY Slip Op 03731, 2nd pt 5-10-17

NEGLIGENCE (PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT)/MEDICAL MALPRACTICE (PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT)/EVIDENCE (EXPERT OPINION, MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT)/EVIDENCE (MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT)

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PLAINTIFF’S EXPERT, AN ANESTHESIOLOGIST, DID NOT DEMONSTRATE HOW HE WAS FAMILIAR WITH THE ACCEPTED STANDARD OF CARE FOR AN ORTHOPEDIC SURGEON, THE SURGEON’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Fourth Department determined defendant orthopedic surgeon’s (McGrath’s) motion for summary judgment in this medical malpractice/wrongful death case should have been granted. Defendant’s detailed affidavit established he did not deviate from the applicable standard of care and plaintiff’s expert, an anesthesiologist, did not raise a question of fact:

McGrath met his burden by submitting a detailed affirmation establishing that his care and treatment of decedent in recommending and performing surgery was consistent with the accepted standard of care … . The burden then shifted to plaintiff to raise an issue of fact by submitting a physician’s affidavit establishing both a departure from the accepted standard of care and proximate cause … . Plaintiff failed to meet that burden inasmuch as he submitted the affirmation of an anesthesiologist who failed to establish how he was familiar with the accepted standard of care for an orthopedic surgeon. Although a medical expert need not be a specialist in a field to offer an opinion concerning the accepted standards of care in that field, a physician offering an opinion outside his or her particular field must lay a foundation to support the reliability of that opinion … . Chillis v Brundin, 2017 NY Slip Op 03646, 4th Dept 5-5-17

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT, AN ANESTHESIOLOGIST, DID NOT DEMONSTRATE HOW HE WAS FAMILIAR WITH THE ACCEPTED STANDARD OF CARE FOR AN ORTHOPEDIC SURGEON, THE SURGEON’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (PLAINTIFF’S EXPERT, AN ANESTHESIOLOGIST, DID NOT DEMONSTRATE HOW HE WAS FAMILIAR WITH THE ACCEPTED STANDARD OF CARE FOR AN ORTHOPEDIC SURGEON, THE SURGEON’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/EXPERT OPINION  (MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT, AN ANESTHESIOLOGIST, DID NOT DEMONSTRATE HOW HE WAS FAMILIAR WITH THE ACCEPTED STANDARD OF CARE FOR AN ORTHOPEDIC SURGEON, THE SURGEON’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT OPINION, PLAINTIFF’S EXPERT, AN ANESTHESIOLOGIST, DID NOT DEMONSTRATE HOW HE WAS FAMILIAR WITH THE ACCEPTED STANDARD OF CARE FOR AN ORTHOPEDIC SURGEON, THE SURGEON’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)

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PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM TO THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED.

The Third Department, reversing Supreme Court, determined plaintiff’s motion to conform the pleadings to the proof should have been granted in this medical malpractice action. Defendants submitted proof on the relevant issues (the treatment of plaintiff by defendant Slavin on January 26, 2009) and did not demonstrate amending the pleadings would result in any prejudice to them:

As the parties opposing such amendment, defendants had the burden of establishing that they had been prejudiced, that is that they “ha[d] been hindered in the preparation of [their] case or ha[d] been prevented from taking some measure in support of [their] position” … . That burden cannot be met when the difference between the original pleading and the evidence results from “‘proof admitted at the instance or with the acquiescence of [the opposing] party'”… . * * *

… [A]s defendants acquiesced to the introduction of the evidence of Slavin’s negligence on January 26, 2009, they could not meet their burden when they later opposed plaintiff’s cross motion to conform the pleadings to the proof adduced at trial … . Even if this were not the case, defendants failed to meet their burden of establishing prejudice. Defendants’ contentions that they had been unprepared for cross-examination of plaintiff’s expert was conclusory, as defendants failed to offer a single example as to the manner in which the introduction of evidence that Slavin was negligent on January 26, 2009 hindered their cross-examination. Morever, defendants’ claims that they were prejudiced by the introduction of the January 26, 2009 negligence were unsupported by specific examples or proof in the record. More generally, the record establishes that plaintiffs had plainly notified defendants by their bills of particulars that plaintiff had been treated by Slavin on January 26, 2009 and that Slavin’s negligence included his failure to recognize, from imaging studies, the need to perform a closed reduction on plaintiff’s injured leg. Noble v Slavin, 2017 NY Slip Op 03578, 3rd Dept 5-4-17

CIVIL PROCEDURE (AMEND PLEADINGS TO CONFORM TO THE PROOF, PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/PLEADINGS, MOTION TO CONFORM TO PROOF (PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/PLEADINGS, AMENDMENT OF (PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/NEGLIGENCE (MEDICAL MALPRACTICE, CIVIL PROCEDURE, PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (CIVIL PROCEDURE, PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)

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QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the statute of limitations in this medical malpractice action was tolled by the continuous treatment doctrine:

“Under the continuous treatment doctrine, the 2½ year period does not begin to run until the end of the course of treatment, when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint'” … . The doctrine “applies when further treatment is explicitly anticipated by both physician and patient,” which is generally “manifested in the form of a regularly scheduled appointment for the near future, agreed upon during that last visit, . . . for the purpose of administering ongoing corrective efforts for the same or a related condition” …  Further “[i]ncluded within the scope of continuous treatment’ is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment” ,,, ,

In the present case, [defendant doctor] testified at his deposition that when he discussed treatment options with the plaintiff, he advised the plaintiff that a new treatment process was available outside the United States and that he was cautiously optimistic that, at some time in the foreseeable future, he could offer it to the plaintiff in New York. The plaintiff, who was aware that the treatment process was the subject of a study aimed at obtaining FDA approval, testified at his deposition that he was waiting for the new treatment process to become available. After being told, in November 2008, that his only options were to wait for the new treatment or seek treatment outside the country, the plaintiff returned to the defendants for treatment of the same condition on March 9, 2011, and, in fact, received treatment for the same condition from the defendants continuing until December 2012. Freely v Donnenfeld, 2017 NY Slip Op 03491, 2nd Dept 5-3-17

NEGLIGENCE (MEDICAL MALPRACTICE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (CONTINUOUS TREATMENT DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/CIVIL PROCEDURE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE, STATUTE OF LIMITATIONS,  QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/CONTINUOUS TREATMENT DOCTRINE (MEDICAL MALPRACTICE, STATUTE OF LIMITATIONS, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

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DOCTOR’S CREDENTIALING FILE PRIVILEGED AND NOT DISCOVERABLE, WHETHER CONTENTS OF PERSONNEL FILE ARE PRIVILEGED MUST BE DETERMINED DOCUMENT BY DOCUMENT.

The Fourth Department, reversing Supreme Court, determined defendant doctor’s (Kolli’s) credentialing file was privileged and therefore not discoverable. The discovery request for the doctor’s personnel file was too broad; whether any parts of it are privileged must be determined document by document:

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Concerning the discoverability of Dr. Kolli’s credentialing file, we note that such files “fall squarely within the materials that are made confidential by Education Law § 6527 (3) and article 28 of the Public Health Law”… . That privilege shields from disclosure ” the proceedings [and] the records relating to performance of a medical or a quality assurance review function or participation in a medical . . . malpractice prevention program’ ” .. . Here, defendants established that the credentialing file was “generated in connection with a quality assurance review function pursuant to Education Law § 6527 (3) or a malpractice prevention program pursuant to [article 28 of the] Public Health Law” … . We therefore conclude that the credentialing file is privileged and that the court improperly ordered defendants to disclose it… .

Although there is an exception to the privilege, the exception is limited to those statements made by a doctor to his or her employer-hospital concerning the subject matter of a malpractice action and pursuant to the hospital’s quality-control inquiry into the incident underlying that action … . Contrary to plaintiffs’ contention, that exception does not apply here because the injury underlying this action was never the subject of such an inquiry. Jousma v Kolli, 2017 NY Slip Op 03308, 4th Dept 4-28-17

 

NEGLIGENCE (DOCTOR’S CREDENTIALING FILE PRIVILEGED AND NOT DISCOVERABLE, WHETHER CONTENTS OF PERSONNEL FILE ARE PRIVILEGED MUST BE DETERMINED DOCUMENT BY DOCUMENT)/MEDICAL MALPRACTICE (DISCOVERY, PRIVILEGE, DOCTOR’S CREDENTIALING FILE PRIVILEGED AND NOT DISCOVERABLE, WHETHER CONTENTS OF PERSONNEL FILE ARE PRIVILEGED MUST BE DETERMINED DOCUMENT BY DOCUMENT)/CIVIL PROCEDURE (MEDICAL MALPRACTICE, DISCOVERY, PRIVILEGE, DOCTOR’S CREDENTIALING FILE PRIVILEGED AND NOT DISCOVERABLE, WHETHER CONTENTS OF PERSONNEL FILE ARE PRIVILEGED MUST BE DETERMINED DOCUMENT BY DOCUMENT)/PRIVILEGE (MEDICAL MALPRACTICE, DISCOVERY, PRIVILEGE, DOCTOR’S CREDENTIALING FILE PRIVILEGED AND NOT DISCOVERABLE, WHETHER CONTENTS OF PERSONNEL FILE ARE PRIVILEGED MUST BE DETERMINED DOCUMENT BY DOCUMENT)/DISCOVERY (MEDICAL MALPRACTICE, PRIVILEGE, DOCTOR’S CREDENTIALING FILE PRIVILEGED AND NOT DISCOVERABLE, WHETHER CONTENTS OF PERSONNEL FILE ARE PRIVILEGED MUST BE DETERMINED DOCUMENT BY DOCUMENT)/CREDENTIALING FILE  (MEDICAL MALPRACTICE, PRIVILEGE, DOCTOR’S CREDENTIALING FILE PRIVILEGED AND NOT DISCOVERABLE, WHETHER CONTENTS OF PERSONNEL FILE ARE PRIVILEGED MUST BE DETERMINED DOCUMENT BY DOCUMENT)/PERSONNEL FILE MEDICAL MALPRACTICE, DISCOVERY, PRIVILEGE, DOCTOR’S CREDENTIALING FILE PRIVILEGED AND NOT DISCOVERABLE, WHETHER CONTENTS OF PERSONNEL FILE ARE PRIVILEGED MUST BE DETERMINED DOCUMENT BY DOCUMENT)

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HOSPITAL NOT LIABLE FOR ACTS OF SURGEON WHO WAS NOT AN EMPLOYEE, ANALYTICAL CRITERIA OUTLINED.

The Second Department determined defendant hospital (Beth Israel) could not be liable for the acts of a surgeon (Krikhely) who: (1) was not an employee; (2) was not subject to the emergency room exception; (3) did not order the hospital staff to perform an act which was contraindicated; and (4) was not acting under the ostensible or apparent authority of the hospital:

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… [T]he Beth Israel defendants established, prima facie, that Krikhely was a private attending physician who was not an employee of the hospital and who was referred to [plaintiff] by his private physician … . Furthermore, the Beth Israel defendants made a prima facie showing that the emergency room exception was inapplicable by demonstrating that Spiegel was referred to Krikhely’s care by his private physician … .. In opposition, the plaintiffs failed to rebut the prima facie showing that Krikhely was not an employee of the hospital and that the emergency room exception did not apply … . Moreover, the plaintiffs failed to raise a triable issue of fact as to whether the hospital’s staff committed independent acts of malpractice and as to whether any order given by Krikhely was so contraindicated that it should not have been followed by the hospital’s staff … .  Furthermore, the plaintiffs failed to raise a triable issue of fact as to whether the hospital may be held liable under a theory of ostensible or apparent agency … . Spiegel v Beth Israel Med. Center-Kings Highway Div., 2017 NY Slip Op 03211, 2nd Dept 4-26-17

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NEGLIGENCE (HOSPITAL NOT LIABLE OF ACTS OF SURGEON WHO WAS NOT AN EMPLOYEE, ANALYTICAL CRITERIA OUTLINED)/MEDICAL MALPRACTICE (HOSPITAL NOT LIABLE OF ACTS OF SURGEON WHO WAS NOT AN EMPLOYEE, ANALYTICAL CRITERIA OUTLINED)/HOSPITALS (MEDICAL MALPRACTICE, HOSPITAL NOT LIABLE OF ACTS OF SURGEON WHO WAS NOT AN EMPLOYEE, ANALYTICAL CRITERIA OUTLINED)

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PLAINTIFF’S EXPERT, A GENERAL SURGEON, DID NOT ASSERT KNOWLEDGE OF GASTROENTEROLOGY AND THEREFORE DID NOT RAISE A QUESTION OF FACT IN THE FACE OF DEFENDANTS’ GASTROENTEROLOGY EXPERTS.

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s expert (Dr. Befeler) was a general surgeon and did not assert any knowledge of gastroenterology. His affidavit was not sufficient to raise a question of fact in the face of plaintiff’s gastroenterology experts:

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Here, there is no indication that Dr. Befeler possessed the requisite background and knowledge to furnish a reliable opinion concerning the practice of gastroenterology … . While a gastroenterologist may well be qualified to render an opinion on a surgical procedure involving the gastrointestinal system, it cannot be said that a general surgeon is qualified to opine on any specialty simply because the specialist may eventually refer the patient for surgery. Indeed, Dr. Befeler averred only that his conclusion that both doctors “were negligent in failing to follow standard and accepted medical procedures” was based upon his “review of the above records, [his] education, years of training, and [his] forty year experience in the field of General Surgery.” Nowhere did the doctor set forth any experience in gastroenterology or detail the standard of care for that specialty. Bartolacci-Meir v Sassoon, 2017 NY Slip Op 03040, 1st Dept 4-20-17

NEGLIGENCE (PLAINTIFF’S EXPERT, A GENERAL SURGEON, DID NOT ASSERT KNOWLEDGE OF GASTROENTEROLOGY AND THEREFORE DID NOT RAISE A QUESTION OF FACT IN THE FACE OF DEFENDANTS’ GASTROENTEROLOGY EXPERTS)/MEDICAL MALPRACTICE (PLAINTIFF’S EXPERT, A GENERAL SURGEON, DID NOT ASSERT KNOWLEDGE OF GASTROENTEROLOGY AND THEREFORE DID NOT RAISE A QUESTION OF FACT IN THE FACE OF DEFENDANTS’ GASTROENTEROLOGY EXPERTS)/EVIDENCE (MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT, A GENERAL SURGEON, DID NOT ASSERT KNOWLEDGE OF GASTROENTEROLOGY AND THEREFORE DID NOT RAISE A QUESTION OF FACT IN THE FACE OF DEFENDANTS’ GASTROENTEROLOGY EXPERTS)

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NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED.

The First Department, over a dissent, determined defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff raised a new theory in response to the summary judgment motion. The First Department held that the new theory could not be entertained by searching the record and therefore could not support the denial of summary judgment or an amended bill of particulars:

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Once the defendants met their burden for summary judgment, plaintiff was obligated to rebut defendant’s prima facie showing with medical evidence demonstrating that the defendants departed from accepted medical practice … . Here, plaintiff failed to address the opinions of defendants’ experts or defendants’ prima facie showing that the result from the complicated, extensive double jaw surgery was anything but a reasonable result. Thus, there was no basis to preclude a grant of summary judgment in favor of defendants … . Instead, plaintiff proffered a new theory, based on the report of an expert otolaryngologist, who opined that Dr. Behrman had failed to take into account plaintiff’s primary immune deficiency in planning the surgery, that he should have initially consulted with an immunologist who would have performed testing before surgery, and that he failed to refer plaintiff after surgery to an ENT doctor, who would have consulted with an immunologist. Plaintiff’s expert asserted that these failures led to the development of an infection, which caused plaintiff’s hearing loss, numbness, and teeth misalignment.

It is axiomatic that a plaintiff cannot defeat a summary judgment motion that made out a prima facie case by merely asserting, without more, a new theory of liability for the first time in the opposition papers … . Since plaintiff’s opposition papers were insufficient absent this new theory of recovery, defendants’ summary judgment motion should have been granted … . Biondi v Behrman, 2017 NY Slip Op 03039, 1st Dept 4-20-17

NEGLIGENCE (NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRACTICE  (NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (SUMMARY JUDGMENT,  (NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED)/SUMMARY JUDGMENT (NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED)

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NOTICE OF CLAIM CANNOT BE AMENDED BY ADDING A NEW INJURY AND THEORY OF LIABILITY.

The Second Department determined the plaintiff’s motion to amend the notice of claim against the NYC Health and Hospitals Corporation was properly denied. A notice of claim cannot be amended by adding a new injury theory of liability:

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A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability … . Here, the proposed amendments to the notice of claim asserted a new injury and added a new theory of liability … . These amendments were not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6) … . Castillo v Kings County Hosp. Ctr., 2017 NY Slip Op 02962, 2nd Dept 4-19-17

NEGLIGENCE (NOTICE OF CLAIM CANNOT BE AMENDED BY ADDING A NEW INJURY AND THEORY OF LIABILITY)/MEDICAL MALPRACTICE (NOTICE OF CLAIM CANNOT BE AMENDED BY ADDING A NEW INJURY AND THEORY OF LIABILITY)/MUNICIPAL LAW (NOTICE OF CLAIM CANNOT BE AMENDED BY ADDING A NEW INJURY AND THEORY OF LIABILITY)

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