| Alvarado v Beth Israel Med. Ctr. |
| 2010 NY Slip Op 08520 [78 AD3d 873] |
| November 16, 2010 |
| Appellate Division, Second Department |
| Maria Alvarado et al., Respondents, v Beth Israel MedicalCenter et al., Appellants. |
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In an action to recover damages for medical malpractice, etc., the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County (Rosenberg,J.), dated September 11, 2009, as denied their motion for summary judgment dismissing thecomplaint and granted the plaintiffs' cross motion for leave to amend their bill of particulars.
Ordered that the order is affirmed insofar as appealed from, with costs.
On September 14, 1999, the plaintiff Maria Alvarado (hereinafter the plaintiff) underwent aprocedure to remove gallstones at the defendant Beth Israel Medical Center (hereinafter thehospital). The procedure was performed by several doctors, including Dr. Andrew Lo, anemployee of the hospital. After a bile duct leak was discovered, the plaintiff underwent a secondprocedure at the hospital on September 17, 1999, which was performed by Dr. Seth Cohen, anindependent contractor who is no longer a party to this action (see Alvarado v Beth Israel Med. Ctr.,60 AD3d 981 [2009]). A third procedure was performed by Dr. Lo on the same day,following the procedure performed by Dr. Cohen.
In 2002, the plaintiff and her husband, suing derivatively (hereinafter together the plaintiffs)commenced this action against, among others, Dr. Lo and the hospital, alleging, among otherthings, that the defendants had committed malpractice by perforating the plaintiff's intestineduring the September 14, 1999, procedure, and failing to timely diagnose and treat thisperforation. In November 2008 the defendants moved for summary judgment dismissing thecomplaint, presenting evidence that the perforation of the plaintiff's intestine did not occur duringthe September 14, 1999, procedure, but occurred during the September 17, 1999, procedureperformed by Dr. Cohen. The plaintiffs cross-moved for leave to amend their bill of particulars toadd new theories of malpractice, including an allegation that the defendants committedmalpractice by failing to remove the entire gallbladder on September 14, 1999, which created anincreased risk of a bile duct leak, creating the necessity for the first September 17, 1999, surgery,and an allegation that Dr. Lo performed an unnecessary and/or improper subsequent surgery onSeptember 17, 1999. The Supreme Court denied the defendants' motion and granted theplaintiffs' cross motion. We affirm.
Contrary to the defendants' contention, the Supreme Court did not improvidently exercise itsdiscretion in granting the plaintiffs' cross motion for leave to amend their bill of [*2]particulars. Leave to amend a bill of particulars is ordinarily freelygiven in the absence of prejudice or surprise, unless the amendment is sought on the eve of trial(see Grande v Peteroy, 39 AD3d590, 591 [2007]; Ciminello vSullivan, 65 AD3d 1002, 1003 [2009]; Ito v 324 E. 9th St. Corp., 49 AD3d 816, 817 [2008]). The medicalinformation which serves as the basis for the new allegations has been freely available to thedefendants since the time of discovery (see Adams v Jamaica Hosp., 258 AD2d 604[1999]) and, in fact, the defendants' expert had addressed the new allegations in his replyaffirmation (see Ito v 324 E. 9th St. Corp., 49 AD3d at 817). Moreover, to avoid anypossible prejudice, the Supreme Court vacated the note of issue in order to permit the defendantsfurther discovery (see Cherebin vEmpress Ambulance Serv., Inc., 43 AD3d 364, 365 [2007]; Grande v Peteroy,39 AD3d at 591).
The Supreme Court also properly denied the defendants' motion for summary judgmentdismissing the complaint. In light of the amendment to the bill of particulars, in opposition to thedefendants' prima facie showing of entitlement to judgment as a matter of law on the issue ofwhether any departure on the part of Dr. Lo, as opposed to Dr. Cohen, was the proximate causeof the plaintiff's injuries, the plaintiffs raised a triable issue of fact as to Dr. Lo (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]).
While the defendants made a prima facie showing that the hospital was not vicariously liablefor any possible malpractice committed by Dr. Cohen by establishing that he was an independentcontractor and not a hospital employee, the plaintiffs raised a triable issue of fact as to whetherthe hospital should be held vicariously liable for any alleged malpractice of Dr. Cohen under atheory of apparent or ostensible agency (see Sampson v Contillo, 55 AD3d 588, 590-591 [2008]; Sosnoff v Jackman, 45 AD3d 568,571 [2007]; Dragotta v SouthamptonHosp., 39 AD3d 697, 699 [2007]). Furthermore, contrary to the defendants' contention,they failed to make a prima facie showing that the perforation that allegedly occurred during theprocedure performed by Dr. Cohen was not a deviation from the standard of care (see Fotiou v Goodman, 74 AD3d1140 [2010]). Skelos, J.P., Dickerson, Eng and Lott, JJ., concur. [Prior Case History:2009 NY Slip Op 32146(U).]