| Dmytryszyn v Herschman |
| 2010 NY Slip Op 08893 [78 AD3d 1108] |
| November 30, 2010 |
| Appellate Division, Second Department |
| John Dmytryszyn, Individually and as Executor of ElizabethDmytryszyn, Deceased, Respondent, v Zvi Herschman, M.D., Appellant, et al.,Defendants. |
—[*1] Kreindler & Kreindler LLP, New York, N.Y. (Megan W. Benett, David C. Cook, and SusanFriery of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice and wrongful death, thedefendant Zvi Herschman appeals from an order of the Supreme Court, Westchester County(Giacomo, J.), entered July 14, 2009, which granted the plaintiff's motion pursuant to CPLR3025 (b) for leave to amend the complaint by adding a demand for punitive damages against him.
Ordered that the order is reversed, on the law, with costs, and the motion for leave to amendthe complaint is denied.
The plaintiff commenced this action, inter alia, to recover damages for medical malpracticeand wrongful death against, among others, the appellant, alleging that his negligence inperforming an anesthesia-assisted rapid opiate detoxification procedure using the drug propofol(hereinafter the AROD procedure) resulted in the death of the plaintiff's wife. The New YorkState Department of Health (hereinafter the DOH) issued a statement of deficiencies inconnection with the patient's death. The DOH found, among other things, that although theappellant did not have anesthesia privileges at the hospital where the procedure was performed,he was board certified in anaesthesiology and pain management, and did have consulting andpain management privileges at that hospital. Moreover, although the DOH found that theappellant's alleged experience performing the AROD procedure at other facilities could not beverified, it noted the appellant's statement to the hospital's medical director that the appellant hadperformed AROD procedures on numerous occasions prior to his treatment of the decedent. Inaddition, although the DOH found that the appellant was not present at the hospital during mostof the AROD procedure, it recognized that the AROD procedure was expected to take as long asthree days, and that the appellant was present at the hospital on several occasions during thatperiod of time. With respect to the use of propofol, the DOH found that the appellantadministered higher-than-recommended levels of propofol for a sustained period of time, and thatthe appellant failed to order the administration of certain drugs which would ameliorate theadverse effects of propofol. Based, inter alia, upon these findings, the plaintiff moved pursuant toCPLR 3025 (b) for leave to amend the complaint to add a demand for punitive damages againstthe appellant. The Supreme Court granted the motion. We reverse.[*2]
Leave to amend a complaint is to be freely granted,provided that the proposed amendment does not prejudice or surprise the defendant, is notpatently devoid of merit, and is not palpably insufficient (see CPLR 3025 [b]; Shovakv Long Is. Commercial Bank, 50 AD3d 1118, 1120 [2008]). Punitive damages arerecoverable in a medical malpractice action only where the defendant's conduct evinces a highdegree of moral culpability or willful or wanton negligence or recklessness (see Hill v 2016Realty Assoc., 42 AD3d 432, 433 [2007]; Morrell v Gorenkoff, 278 AD2d 210[2000]; Lee v Health Force, 268 AD2d 564 [2000]; Rey v Park View NursingHome, 262 AD2d 624, 627 [1999]). The plaintiff's allegations were palpably insufficient toshow such conduct (see Hill v 2016 Realty Assoc., 42 AD3d at 433; Morton vBrookhaven Mem. Hosp., 32 AD3d 381 [2006]). Accordingly, the plaintiff's motion shouldhave been denied. Fisher, J.P., Santucci, Eng and Sgroi, JJ., concur.