MARK C. DILLON, J.P.
JOHN M. LEVENTHAL VALERIE BRATHWAITE NELSON LINDA CHRISTOPHER, JJ. (Index No. 50323/14)
Yoeli Gottlieb & Etra LLP (Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY [Steven J. Ahmuty, Jr., and John F. Watkins], of counsel), for appellant.
Wingate, Russotti, Shapiro & Halperin, LLP, New York, NY (Kathleen P. Kettles of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for medical malpractice and wrongful death, the defendant Paul Gleason appeals from (1) an amended order of the Supreme Court, Westchester County (Mary H. Smith, J.), dated February 28, 2017, and (2) a supplemental order of the same court dated March 2, 2017. The amended order dated February 28, 2017, insofar as appealed from, granted the plaintiff's cross motion for leave to amend the complaint and bill of particulars to allege a new theory of causation and, in effect, denied, as academic, the motion of the defendant Paul Gleason for summary judgment dismissing the complaint insofar as asserted against him. The supplemental order dated March 2, 2017, insofar as appealed from, clarified the amended order dated February 28, 2017, to direct that the complaint and bill of particulars be amended nunc pro tunc as of the date of entry of the February 28, 2017, amended order, conditioned upon the plaintiff's payment of costs in the sum of $9,000 to the defendant Paul Gleason.
ORDERED that the amended order dated February 28, 2017, is reversed insofar as appealed from, on the law, with costs, the motion of the defendant Paul Gleason for summary judgment dismissing the complaint insofar as asserted against him is granted, the plaintiff's cross motion to amend the complaint and bill of particulars is denied, and the supplemental order dated March 2, 2017, is vacated; and it is further,
ORDERED that the appeal from the supplemental order dated March 2, 2017, is dismissed, in light of our determination on the appeal from the amended order dated February 28, 2017; and it is further,
ORDERED that one bill of costs is awarded to the appellant.
On October 31, 2012, when the plaintiff's wife (hereinafter the decedent) was 20 weeks pregnant, an anatomy scan of the fetus was performed. The anatomy scan was interpreted by the defendant Paul Gleason (hereinafter the defendant), a maternal fetal medicine physician. The defendant determined that the study was normal, although he noted a component asymmetry, and recommended a repeat growth sonogram in six to eight weeks. At the decedent's next sonogram, taken January 25, 2013, a physician who interpreted the study noted that the fetus's cerebral ventricles appeared dilated and recommended further evaluation. The defendant performed a repeat growth sonogram on January 28, 2013, and interpreted the study as showing bilateral moderate ventriculomegaly. He referred the decedent for a fetal MRI, which demonstrated agenesis of the corpus callosum and polymicrogyria. The physician who interpreted the fetal MRI noted that the observations "significantly and negatively impact an already guarded prognosis" for the fetus. After further counseling, the decedent elected to terminate the pregnancy.
The abortion procedure took place over four days, from February 3, 2013, to February 6, 2013, and the decedent was discharged the final day. Later in the evening on February 6, 2013, however, the decedent's condition deteriorated and she presented in the early morning of the following day to a hospital for further treatment. The decedent died on February 7, 2013. The medical examiner determined that the decedent's cause of death was "Disseminated Intravascular Coagulation (DIC) due to Amniotic Fluid Embolus following Medical Termination of Pregnancy due to Fetal Anomalies."
In January 2014, the plaintiff commenced this action to recover damages for medical malpractice and wrongful death against the defendant and others. The plaintiff alleged that the defendant's failure to identify the abnormalities in the fetus's brain at the 20-week ultrasound caused the decedent to undergo a third-trimester abortion as opposed to a second-trimester abortion, which would have been less risky, and the third-trimester abortion ultimately caused the decedent to develop and die from amniotic fluid embolus (hereinafter AFE). Discovery ensued and after the filing of the note of issue on August 1, 2016, the defendant moved for summary judgment dismissing the complaint insofar as asserted against him.
In support of the motion, the defendant submitted the affidavit of an expert in maternal fetal medicine who opined that the defendant's alleged failure to diagnose fetal abnormalities in the second trimester did not contribute to the decedent's risk of, or cause the decedent to sustain, AFE because there is no medical basis to conclude that a delay in undergoing a termination procedure from the second trimester to the third trimester causes one to develop AFE. The plaintiff opposed the defendant's motion and cross-moved to amend the complaint and bill of particulars to allege that the defendant's negligence caused the decedent to develop and ultimately die of an infection resulting in septic shock, not AFE as previously alleged.
By amended order dated February 28, 2017, the Supreme Court granted the plaintiff's cross motion and, in effect, denied the defendant's motion as academic. However, the court conditioned its grant of the plaintiff's cross motion on the plaintiff paying the defendant $9,000 toward his costs and granted the defendant the right to file another motion for summary judgment 60 days from entry of the order to address the plaintiff's "new proximate cause theory." On March 2, 2017, the court issued a supplemental order, which "clarifie[d]" its prior order and deemed the plaintiff's complaint and bill of particulars to be amended nunc pro tunc as of the date of entry of the February 28, 2017, amended order, conditioned upon the plaintiff's payment of costs in the sum of $9,000 to the defendant. The defendant appeals from both orders.
"A physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure from accepted standards of medical care or that any departure was not a proximate cause of the plaintiff's injuries" (Schwartzberg v Huntington Hosp., 163 AD3d 736, 737 [internal quotation marks omitted]; see Stukas v Streiter, 83 AD3d 18, 23-25). "In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars" (Schwartzberg v Huntington Hospital, 163 AD3d at 737 [internal quotation marks omitted]). Once this showing has been made, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements upon which the defendant met his or her prima facie burden (see id.).
Here, the defendant met his prima facie burden as to proximate cause by submitting the affidavit of an expert in maternal fetal medicine, who opined that any delay in the decedent undergoing an abortion procedure from the second trimester to the third trimester did not cause her to develop AFE. In opposition, the plaintiff did not raise a triable issue of fact as to the defendant's prima facie showing, but rather alleged, for the first time, a new theory of causation, claiming that the decedent died of septic shock, not AFE. "A plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars" (Palka v Village of Ossining, 120 AD3d 641, 643; see Hanson v Sewanhaka Cent. High Sch. Dist., 155 AD3d 702, 703; Shaw v City of New York, 139 AD3d 698, 699-700; Garcia v Richer, 132 AD3d 809, 810; Mezger v Wyndham Homes, Inc., 81 AD3d 795, 796; Dolan v Halpern, 73 AD3d 1117, 1119; Abalola v Flower Hosp., 44 AD3d 522; Pinn v Baker's Variety, 32 AD3d 463, 464). Accordingly, summary judgment should have been granted in favor of the defendant.
We agree with the defendant that the Supreme Court should have denied the plaintiff's cross motion for leave to amend the complaint and bill of particulars, as the defendant had no notice of the plaintiff's new theory of causation (see Biondi v Behrman, 149 AD3d 562, 564). "[O]nce discovery has been completed and the case has been certified as ready for trial, [a] party will not be permitted to amend the bill of particulars except upon a showing of special and extraordinary circumstances" (Schreiber-Cross v State of New York, 57 AD3d 881, 884 [internal quotation marks omitted]; see Mackauer v Parikh, 148 AD3d 873, 877). Here, the plaintiff failed to show special and extraordinary circumstances in seeking leave to amend the complaint and the bill of particulars in response to the defendant's motion for summary judgment, three years after the commencement of the action and almost six months after the filing of the note of issue. The plaintiff offered no reasonable excuse for relying solely on the medical examiner's report and for failing to explore his new theory of causation earlier in the proceedings (see Jenkins v North Shore-Long Is. Jewish Health Sys., Inc., 144 AD3d 864). Moreover, permitting the amendment at this late stage of the proceedings would prejudice the defendant.
DILLON, J.P., LEVENTHAL, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur. ENTER:
Aprilanne Agostino
Clerk of the Court
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