Opinion
24002.
Decided January 7, 2004.
Maria Del Pilar Ocasio Douglas, New York City, for plaintiff.
Ellenberg Hutson, New York City (Dawn Bristol of counsel), for defendants.
Introduction
Motion by the named plaintiff's attorney for leave to amend the caption of this action to reflect substitution of two decedent parties, and for leave to amend the complaint to assert a cause of action for wrongful death.
Facts Procedural Posture
According to the allegations housed in the named plaintiff's proposed amended complaint, the named plaintiff Carol Rubick received oncological treatment at defendants Robert C. Atkins, M.D., P.C., (hereinafter the P.C.) and The Atkins Center for Complementary Medicine (hereinafter the Center) from September 1995 to October 2000 (Plaintiff's moving papers, ex. C, ¶¶ 21-25). The named plaintiff was allegedly treated by defendants Robert C. Atkins, M.D., Fred Pescatore, M.D., and Lawrence Kempf, M.D., at the P.C. and the Center during the aforementioned period (id at ex. C, ¶¶ 8-21).
The named plaintiff apparently commenced the instant action, sounding in medical malpractice and lack of informed consent, against the defendants on June 6, 2002 (Plaintiff's affirmation in support, ¶ 3). The crux of the named plaintiff's action was the defendants' alleged negligence in treating the named plaintiff for breast cancer.
The named plaintiff subsequently passed away on January 18, 2003, at the Trinity Medical Center located in Carrollton, Texas, and Linda Lou Poag was appointed the executrix of the named plaintiff's estate (id ¶ 4; ex. A; ex. B; ex. C, ¶ 24). Dr. Atkins also passed away following the commencement of this action, and Veronica Atkins was appointed the executrix of his estate (Plaintiff's affirmation in support, ¶ 6; ex. A).
The named plaintiff's attorney has made the instant motion seeking leave to amend the caption of this action to reflect the named plaintiff's death and the appointment of the executrix of her estate, Linda Lou Poag, and the death of Dr. Atkins and the appointment of the executrix of his estate, Veronica Atkins (Notice of motion). The named plaintiff's attorney also seeks leave to amend the complaint to assert a cause of action for wrongful death (id).
The parties have stipulated to amend the caption of the complaint, and have stipulated to the contents of the amended caption (Plaintiffs' moving papers, ex. A).
In support of that branch of the motion which is for leave to amend the complaint to assert a cause of action for wrongful death, the named plaintiff's attorney has submitted a copy of the named plaintiff's death certificate (Plaintiff's moving papers, ex. B). The death certificate was certified by a Texas physician named Naresh K. Gupta, who listed the immediate cause of the named plaintiff's death as hypercalcemia (i.e. excessive amount of calcium in bloodstream) (id). Dr. Gupta also listed "metastases to bones" and breast cancer as conditions which led to the hypercalcemia (id). The basis of Dr. Gupta's conclusions is not revealed.
In opposition to that branch of the motion which is for leave to amend the complaint to assert a cause of action for wrongful death, the defendants argue that denial is warranted given the movant's failure to submit a physician's affirmation causally relating the named plaintiff's death to the alleged malpractice of the defendants (Defendants' opposition, ¶¶ 4-6).
In reply, the movant submitted the verified bill of particulars demanded by Dr. Atkins. This bill particularized the injuries allegedly sustained and procedures undergone by the named plaintiff. The injuries were all cancer-related (e.g. undiagnosed cancer causing metastatic carcinoma of the breast), and the procedures all geared toward detection and treatment of cancer.
Analysis
As a general rule, leave to amend a pleading is freely granted (CPLR 3025[b]; see Siegel, N.Y. Prac, § 237 [3d ed]). However, where leave is sought to assert a cause of action for wrongful death, the proponent must support the motion with "competent medical proof of the causal connection between the alleged malpractice and the death of the original plaintiff" (Collura v. Good, 243 A.D.2d 441, 441 [2d Dept. 1997]; McGuire v. Small, 129 A.D.2d 429, 429 [1st Dept. 1987]; see Griffin v. New York City Trans. Auth., A.D.2d 767 N.Y.S.2d 15 [Nov. 6, 2003; 1st Dept.]; Dembo v. Health Ins. Plan of America (HIP), 239 A.D.2d 382 [2d Dept. 1997]; Layz v. City of New York, 205 A.D.2d 460 [1st Dept. 1994]; Harris v. St. John's Episcopal Hosp., 202 A.D.2d 392 [2d Dept. 1994]; see also Padula v. Bucalo, 214 A.D.2d 661 [2d Dept. 1995]).
The presentation of expert evidence, by way of a physician's affidavit or affirmation, causally linking the defendant's alleged malpractice and the death of the original plaintiff, appears to be the sine qua non of an application for leave to assert a cause of action for wrongful death (see Griffin v. New York City Trans. Auth., supra; Leibowitz v. Mt. Sinai Hosp., 296 A.D.2d 340 [1st Dept. 2002]; Casalone v. Presbyterian Hosp. of City of New York, 276 A.D.2d 452 [1st Dept. 2000]; Smith v. Tyras, 265 A.D.2d 217 [1st Dept. 1999]; Feinberg v. Walter B. Cooke, Inc., 240 A.D.2d 623 [2d Dept. 1997]; Dembo v. Health Ins. Plan of America (HIP), supra; Layz v. City of New York, supra; Harris v. St. John's Episcopal Hosp., supra; Travis v. Chang, 200 A.D.2d 548 [1st Dept. 1994] [death certificate and physician's affidavit]; Ludwig v. Horton Mem. Hosp., 189 A.D.2d 986 [3d Dept. 1993]; Kordonsky v. Andrst, 172 A.D.2d 497 [2d Dept. 1991]; Artese v. Brooklyn Longshoremen's Med. Ctr., 168 A.D.2d 405 [2d Dept. 1990]; Kirchmeyer v. Subramanian, 167 A.D.2d 851 [4th Dept. 1990]; Sweeney v. Gardstein, 160 A.D.2d 1002 [2d Dept. 1990]; Buono v. Victory Mem. Hosp., 151 A.D.2d 633 [2d Dept. 1989]; McGuire v. Small, supra; Liebman v. Newhouse, 122 A.D.2d 252 [2d Dept. 1986]; Palmer v. New York City Trans. Auth., 33 A.D.2d 119 [1st Dept. 1969]). Concomitantly, the majority of the departments of the Appellate Division have expressly held that such evidence must accompany the application (Ludwig v. Horton Mem. Hosp., supra [3d Dept.] ["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 [citations omitted]. Such proof must include statements that, in treating the decedent, the defendant deviated from accepted medical practice and that such departure was the proximate cause of death"]; Sweeney v. Gardstein, supra [2d Dept.] ["a sworn statement of a medical expert establishing that the plaintiff's decedent died as a result of medical malpractice . . . is required to support [a] motion [for leave to add a cause of action sounding in wrongful death]"]; McGuire v. Small, supra [1st Dept.] ["A motion seeking leave to amend a personal injury complaint to assert a cause of action for wrongful death must be supported by competent medical proof of the causal connection between the alleged malpractice and the death of the original plaintiff [citations omitted]. Plaintiff has failed to present expert medical opinion that the alleged failure to diagnose splenic carcinoma was casually connected to the plaintiff's death from cardiopulmonary arrest"]).
In the case at bar, the movant did not submit a physician's affidavit or affirmation in an effort to demonstrate the requisite causal connection, but rather submitted a death certificate certified by an out-of-state physician. While some authority does exist for granting an application to amend a complaint to assert a cause of action for wrongful death which is supported only by a death certificate (see Rosenberg v. New York Univ. Hosp., 128 Misc.2d 90 [Sup Ct N.Y. County, 1985]; 21A Carmody-Wait 2d, Action for Wrongful Death § 130.92; see also Mitchell v. New York City Health and Hosp. Corp., 149 Misc.2d 746 [Sup Ct Bronx County, 1991]; but see Barsella v. Hirsch, Sup Ct, Nassau County, December 22, 2000, Mahon, J., Index No. 30508/98; Talmatch v. Samet, 134 Misc.2d 1013 [Sup Ct Nassau County, 1986]; Silber Rabar, "The Death of a Plaintiff", NYLJ, Dec. 7, 1995, at 3, col. 1 ["In general, simply presenting a death certificate or medical records themselves will not be sufficient. Rather, most courts have required, at the very least, a physician's affidavit setting forth the causal connection as a condition precedent to the granting of a motion to amend." [internal citations omitted]]), such authority is at odds with the aforementioned appellate precedent, and, as such, will not be followed. Therefore, in the absence of physician's affidavit or affirmation, that branch of the motion which is for leave to assert a cause of action for wrongful death must be denied.
Conclusion
Based upon the foregoing, it is hereby
ORDERED that the branch of the named plaintiff's motion which is for leave to amend the caption of the action, pursuant to the stipulation dated August 22, 2003, is granted, and the caption is amended to appear as follows:
and it is further,
ORDERED that the remainder of the named plaintiff's motion is denied; and it is further,
ORDERED that counsel for each of the parties are to appear before the court on January 22, 2004, at the New York County Courthouse, 111 Centre Street, Room 948, Part 40D, for a compliance conference.
Papers considered:
(1) Notice of motion and accompanying exhibits A-C
(2) Affirmation in opposition
(3) Reply affirmation and accompanying exhibit A