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Stuart v. New York City Health & Hospitals Corp.1/10/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Upon the foregoing papers it is ordered that the motion for an order permitting plaintiff to amend the complaint by adding Ann Ashmeade as an individual plaintiff and adding a cause of action for Ann Ashmeade based upon the emotional distress she sustained as a result of the birth of her son on August 8, 1996, in an impaired state due to the negligence and malpractice of the defendants, is granted for the following reasons:
The instant action stems from the care of Ann Ashmeade during the delivery and birth of plaintiff at the Queens Hospital Center on August 8, 1996. The plaintiff was born with various impairments including brain damage and cerebral palsy. The instant action was commenced on March 15, 2000 claiming defendant's medical malpractice caused these injuries. The complaint had one cause of action seeking recovery for the pain and suffering of the infant plaintiff and the other based upon a lack of informed consent. On April 1, 2004, the Court of Appeals decided the case of Broadnax v Gonzalez, 2 NY3d 148, holding that, "even in the absence of an independent injury, medical malpractice resulting in miscarriage or stillbirth should be construed as a violation of a duty of care to the expectant mother, entitling her to damages for emotional distress". On June 7, 2004, the Supreme Court, Appellate Division, Second Department decided the case of Sheppard-Mobley v King, (10 AD3d 70), holding that even in the absence of physical injury, medical malpractice resulting in the birth of a severely impaired child is a violation of the duty of care owed to the mother, entitling her to damages for emotional harm. Plaintiff now seeks to add a cause of action based upon these two cases and add Ann Ashmeade, the expectant mother, as a party. Defendant opposes this motion.
It is well-settled that leave to amend pleadings is freely given "absent prejudice" or surprise resulting directly from the delay." McCaskey Davies & Associates Inc. v New York City Health and Hospitals Corp., 59 NY2d 755 (1983.) Plaintiff claims that since the amended cause of action is newly created, she could not have brought this action earlier and granting permission to amend is appropriate. Plaintiff also claims that the new cause of action has merit and is sufficient as a matter of law. Defendant opposes this motion, claiming the cause of action is time barred by the statute of limitations and the holdings in Broadnax and Sheppard-Mobley should not be applied retroactively, a condition precedent to the commencement of this action has not been met, and there is no merit to the proposed cause of action.
Initially, the causes of actions are not barred since the rule allowing relation back to the date of service or filing of the original complaint under CPLR 203(b) or ( c ) is applicable. Here, all claims arose out of the same conduct, transaction or occurrence and as such, the statute of limitations do not bar the instant cause of action. Moreover, since plaintiff's new cause of action was only recently created, serving a timely notice of claim would have been impossible. As such, it would be an disingenuous tautology to find that plaintiff cannot proceed with this new cause of action, due to failure to serve a notice, when plaintiff had no reason to believe such action existed until after the time to file a notice had expired. Moreover, plaintiff sought leave to amend the complaint in a timely manner after the change in law and the court deems the instant motion to be a sufficient notice of claim. The
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