Opinion
# 2015-015-060 Claim No. 122598 Motion No. M-86452
06-01-2015
LYNN SULLIVAN as Executrix of the Estate of MARK McGOWAN v. THE STATE OF NEW YORK
Mainetti, Mainetti & O'Connor, P.C. By: Joseph E. O'Connor, Esquire Honorable Eric T. Schneiderman, Attorney General By: Joan Matalavage Assistant Attorney General
Synopsis
Motion to amend claim to add a wrongful death cause of action was granted.
Case information
| UID: | 2015-015-060 |
| Claimant(s): | LYNN SULLIVAN as Executrix of the Estate of MARK McGOWAN |
| Claimant short name: | SULLIVAN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122598 |
| Motion number(s): | M-86452 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Mainetti, Mainetti & O'Connor, P.C. By: Joseph E. O'Connor, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Joan Matalavage Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 1, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves to amend her claim to add a cause of action for wrongful death pursuant to CPLR 3025 (b). The original claim, filed on April 8, 2013, alleges claimant's decedent, Mark McGowan, was injured in a motor vehicle accident on February 28, 2013 at the intersection of Garraghan Drive and U.S. Highway 9W in the City of Kingston, County of Ulster, State of New York.
Mr. McGowan was taken to Kingston Hospital immediately after the accident where he complained of pain in his left shoulder, upper spine and neck and a history of cervical fusion surgery at C4 through C6 was noted. He was transferred from Kingston Hospital to Albany Medical Center where he was admitted until his discharge on March 2, 2013. He was treated thereafter by several physicians and health care providers for complaints of increasing pain, numbness and tingling in his upper and lower extremities. Cervical imaging revealed a cervical plate spanning from C4 - C6 without screw fixation and a nonunion across the C5 - C6 level together with other findings (Office Report of Bennie W. Chiles, III, M.D. dated January 28, 2014 attached to his affirmation). On February 5, 2014, Dr. Bennie Chiles performed a multi-level posterior decompression and a fusion with lateral mass screws and rods from C3 to C7. On February 8, 2014, Mr. McGowan was discharged from the hospital. On February 12, 2014, Mr. McGowan died.
In support of her motion to amend the claim to add a cause of action for wrongful death, claimant submits, in addition to various medical records of Mr. McGowan's healthcare providers, an autopsy report and affirmations from Drs. Bennie W. Chiles, III and Bruce D. Charash. The autopsy report indicates that Mr. McGowan died of cardiac arrhythmia due to hypertrophic cardiomyopathy (claimant's Exhibit K).
With respect to Mr. McGowan's surgery after the subject accident, Dr. Chiles rendered the following opinion:
"10. It is my opinion with a reasonable degree of medical certainty, that the motor vehicle accident in which Mark McGowan was involved on February 28, 2013 caused the condition for which I performed surgery on him on February 25, 2014. The basis for my opinion is that despite his prior cervical spine history, Mark was generally well until the accident, after which he became floridly and progressively symptomatic" (Chiles affirmation, ¶ 10).
With respect to the cause of Mr. McGowan's death, Dr. Charash, a Board-certified internist with a sub-specialty in cardiovascular disease, opined that Mr. McGowan died from a fatal cardiac arrhythmia and that the surgery he underwent on February 5, 2014 was a substantial factor causing his death (Charash affirmation, ¶ 2). He explained his opinion as follows:
"Mark's chronic underlying cardiac pathology, as discussed above, in combination with the provocative impact of his rising circulatory adrenaline levels together triggered Mark's sudden death arrhythmia. His surgery on February 5, 2014 created the high risk and ultimately necessary pathophysiological environment that triggered his sudden death arrhythmia approximately 1 week post-operatively. Mark's surgery on February 5, 2014 was directly responsible for his dying from a fatal cardiac arrhythmia. Had he not required surgery on that date he would be alive today" (Charash affirmation, ¶ 18).
In opposition to the motion, defendant contends that claimant's motion to amend the claim to add a wrongful death cause of action should be denied because "there is no clear causal link between any injuries sustained in the accident of 2-28-13 and [decedent's] need for surgery which Claimant alleges resulted in [his] death on 2-12-14" (Affidavit In Opposition of Joan Matalavage, ¶ 3). In support of this contention, defendant points to the fact that Mr. McGowan first underwent a cervical spine fusion in 2000 and injured his neck in an automobile accident on October 27, 2007 for which he commenced an action in the Supreme Court. Mr. McGowan testified at a deposition in that case that his treating neurosurgeon at the time, Dr. Dirisio, had recommended surgery on his cervical spine. Mr. McGowan also testified that the injuries he sustained in the 2007 accident resulted in a severe curtailment of his daily activities. Based upon these facts, defendant contends that the proposed amendment is patently devoid of merit because the surgery Mr. McGowan underwent in 2014 was recommended prior to the 2013 accident which is the subject of this claim.
EPTL 11-3.3 provides that "[w]here an action to recover damages for personal injury has been brought, and the injured person dies, as a result of the injury . . . his personal representative may enlarge the complaint in such action to include the cause of action for wrongful death under 5-4.1." While it is the general rule that leave to amend a pleading should be freely granted in the absence of prejudice or surprise, (CPLR 3025 [b]; McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755,757 [1983]; Edwards & Zuck, P.C. v Cappelli Enters., Inc., 124 AD3d 181, 183 [3d Dept 2014]; Davis v Wyeth Pharms., Inc., 86 AD3d 907 [3d Dept 2011]), it remains the law in the Third Department that "a court will not grant a motion to amend a complaint to allege a cause of action for wrongful death unless it is supported by competent medical proof showing a causal connection between the alleged negligence and the decedent's death" (Ludwig v Horton Mem. Hosp., 189 AD2d 986, 986 [3d Dept 1993]; see Smith v Haggerty, 16 AD3d 967, 968 [3d Dept 2005]; Bastian v State of New York, 8 AD3d 764 [3d Dept 2004]). Even outside the context of wrongful death actions, the Appellate Division, Third Department has applied the rule that leave to amend is properly denied " if the moving party fails to make some evidentiary showing that the proposed amendment has merit" (Trump on the Ocean, LLC v State of New York, 79 AD3d 1325, 1327 [3d Dept 2010]; Cowsert v Macy's E., Inc., 74 AD3d 1444, 1445 [3d Dept 2010]; Gersten-Hillman Agency, Inc. v Heyman, 68 AD3d 1284, 1289 [3d Dept 2009]). Notably, the need for such an evidentiary showing has been abandoned in the Second Department (Lucido v Mancuso, 49 AD3d 220 [2d Dept 2008]; see also Kahan v Spira, 88 AD3d 964 [2d Dept 2011]), followed by the First and Fourth Departments (Matter of Clairol Dev., LLC v Village of Spencerport, 100 AD3d 1546 [4th Dept 2012]; MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499 [1st Dept 2010]). Applying the rule as it currently exists in the Third Department, claimant established, through the submission of competent medical proof, a causal connection between defendant's alleged negligence and the decedent's death. The fact that claimant may have had pre-existing physical conditions that made him more susceptible to injury or death does not relieve the defendant of liability even though the consequences of the injuries were more severe than could ordinarily have been foreseen (see PJI 2:283; Owen v Rochester-Penfield Bus Co., 304 NY 457 [1952]; Poplar v Bourjois, 298 NY 62 [1948]; King v State of New York, 58 AD2d 934 [3d Dept 1977]). Defendant's contention that the decedent's need for surgery was brought about by the automobile accident in 2007 rather than the subject accident goes to the ultimate merit of the claim which need not be resolved on the instant motion (see Kahan v Spira, supra).
Accordingly, claimant's motion is granted and she is directed to serve and file her amended claim within 20 days of the date this Decision and Order is filed.
June 1, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers considered: 1. Notice of Motion To Amend Claim dated March 18, 2015; 2. Affirmation of Joseph E. O'Connor dated March 18, 2015 with Exhibits A - M; 3. Affirmation of Bruce D. Charash, M.D., dated December 5, 2014; 4. Affirmation of Bennie W. Chiles, M.D., dated December 8, 2014; 5. Affidavit of Joan Matalavage sworn to April 13, 2015 with Exhibits 1 - 4; 6. Reply affirmation of Joseph E. O'Connor dated April 20, 2015 with Exhibits A - F.