Generally, when plaintiffs file medical malpractice actions, they will include in their complaints any allegations of negligent acts committed by the defendants that ultimately led to their harm. While plaintiffs have the right to amend their pleadings during the course of litigation, the right is not limitless, and plaintiffs that do not act promptly may waive their right to pursue certain claims. The extent of the right to amend pleadings in a medical malpractice case was the topic of a recent New York opinion in which the court affirmed the dismissal of the plaintiff’s claims against a gastroenterologist. If you were hurt by a negligent physician, it is prudent to consult a capable Rochester medical malpractice lawyer to evaluate your options.
The Plaintiff’s Claims
It is reported that the plaintiff’s decedent suffered from hepatitis B, but his illness was dormant. He was diagnosed with cancer and was then referred to the defendant for management of his hepatitis B during his cancer treatment. The defendant prescribed an antiviral medication to suppress the disease, but the decedent’s hepatitis B was reactivated following his chemotherapy.
Allegedly, the defendant continued to treat the decedent, who eventually was diagnosed with kidney and liver failure. He died due to the failure of multiple organs. The plaintiff, who was the decedent’s wife, filed a medical malpractice lawsuit against the defendant. Approximately a year after the lawsuit was filed, the defendant filed a motion for summary judgment. The plaintiff then filed a motion for leave to amend the complaint and the bill of particulars. The court granted the defendant’s motion and denied the plaintiff’s, and the plaintiff appealed.
The Right to Amend Pleadings in Medical Malpractice Cases
The appellate court found that the trial court properly exercised its discretion in denying the plaintiff’s motion for leave to amend. The court explained that once discovery is completed and a matter has been certified as ready for trial, a party won’t be allowed to amend a bill of particulars absent a showing of extraordinary and special circumstances. A trial court has broad discretion in deciding whether to deny or allow an amendment, and its decision will not be set aside lightly.
In the subject case, the court found that the plaintiff failed to show that there were extraordinary or special circumstances that warranted permission to amend. Specifically, the court found that the plaintiff knew or should have known of the facts that formed the basis of the proposed amendment prior to the close of discovery but did not offer any reasonable excuse for failing to explore the new theory of liability at an earlier time. Thus, the plaintiff’s appeal was denied.
Speak to a Seasoned Medical Malpractice Lawyer in Rochester
Primary care physicians are often called upon to monitor and treat their patient’s chronic health conditions, and if they fail to provide adequate care, it may be grounds for a primary care malpractice claim. If you were hurt by a reckless physician, it is prudent to speak to an attorney as soon as possible. The seasoned Rochester medical malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers can advise you of your rights and help you to pursue the full amount of damages recoverable under the law. You can contact us through our online form or at 585-653-7343 to set up a consultation.