In a claim alleging medical malpractice, claimants' motion to amend the claim to
increase the amount of damages sought from $10 million to $50 million, where no
change in the injuries is alleged, and there has been no demonstration of
prejudice to the defendant, is granted. The defendant's unopposed cross motion
to dismiss the claim against Wendy Smith, individually, on the ground that it
was served and filed more than four years after its accrual, is granted.
The following papers were read on the claimants' motion to amend the claim to
increase the amount of damages sought, and on the defendant's motion to dismiss
the individual claim of Wendy Smith: Notice of Motion, Affirmation in Support
and Exhibits annexed; Notice of Cross Motion, Affirmation in Opposition and in
Support; Reply Affirmation and Exhibits annexed; Sur-Reply.
The claimants move to amend the claim to increase the amount of damages sought
from $10 million to $50 million, based upon the preparation in November 1999 of
a "life care plan" (annexed to claimants' Reply as Exhibit A) which calculates
the cost of providing care to the infant claimant during his lifetime, in excess
of $10 million. In this claim for medical malpractice, it appears that the
claimants intend to prove that the infant claimant will require total care for
the rest of his life.
The defendant opposes the motion on the ground that the claimant has not
provided necessary medical support (see, Dolan v. Garden City Union Free
School District, 113 AD2d 781), and that the defendant will be prejudiced in
preparing for trial, which is scheduled to commence on June 19, 2000.
The cases cited by the defendant involve situations where the increase in the
amount of damages is based upon a change in the injuries alleged to have been
sustained. Dolan v. Garden City Union Free School District, supra
[change in condition, injuries not considered previously, or extent to which
condition has become aggravated]; Barsoum v Wilson, 255 AD2d 537
[recently-discovered injuries]; Lopez v Alexander, 251 AD2d 297
[increased injuries]. In such circumstances, permission to amend the claim
requires a demonstration by the claimant of the existence and extent of the
change in injuries as well as a causal relationship to the negligence alleged,
and that the nature of the change will not prejudice the defendant's ability to
defend at trial.
Here, however, it is not suggested by the claimants that there has been any
change in the injuries alleged to have been sustained, which were set forth in
the claimants' Bill of Particulars, including the assertion that the infant
claimant "will always require constant assistance and supervision of all daily
needs." Paragraph 9, Claimants' Bill of Particulars. The only basis for denial
of the claimant's application, therefore, would be a demonstration by the
defendant that it would be prejudiced in its ability to defend at trial.
Hillenbrand v 3801 Review Place, Inc., 72 AD2d 554 [update of injuries;
actual prejudice at trial]; Kushner v Queens Transit Corp., 97 AD2d 432
[re-evaluation of original injuries; actual prejudice]; Cardone v University
Hospital, 78 AD2d 645 [update and re-evaluation of the original injuries;
actual prejudice at trial].
The defendant has failed to demonstrate any actual prejudice which would result
from an amendment of the claim to increase the amount of damages sought. It is
not suggested by the defendant that proof of damages in the increased amount
will not be relevant at trial. Indeed, in a Sur-Reply, the Assistant Attorney
General suggests that the motion be denied, but with leave to reargue it during
or after trial.
Under the circumstances, the claimants' motion is granted. The claimant shall
serve and file an amended claim, in the form annexed as Exhibit D to the Notice
of Motion, within 20 days of receipt of a filed copy of this Order.
The claimants have not opposed the defendant's cross motion to dismiss the
individual claim of Wendy Smith, on the ground that it was served and filed more
than four years after its accrual. Nor have the claimants opposed the
defendant's cross motion to amend the caption of the claim, to reflect that only
the State of New York is a proper defendant in this claim. The cross motion is
granted. The individual claim of Wendy Smith is dismissed; the caption has been
amended to reflect that only the State of New York is the defendant.