Forman v. Davidson , 424 N.Y.S.2d 711 ( 1980 )

Judgment, Supreme Court, New York County, entered July 28, 1978, after jury trial, reversed, on the law, and the case remanded for a new trial, with costs to abide the event. This malpractice case derived from a dilation and curettage performed by defendant-appellant gynecologist on plaintiff-respondent in 1971. Within the following year, she exhibited abdomnial symptoms which were treated by defendant with antibiotics and anodynes. When she did not improve, she was sent to a radiologist for performance of a hysterosalpingogram. This was followed by a flare-up of the symptoms, leading to performance of an emergency laparotomy, disclosing a massive infection, surgically removed. The theory of liability disclosed by the bill of particulars and on which the trial was conducted was that defendant’s original procedure was negligently performed, resulting in bowel and uterus perforation and consequent infection, and that the infection was masked, during a long period of delay, by administration of the antibiotics and painkillers. As a result of these experiences, plaintiff’s physical condition has completely deteriorated to the point where she must be constantly treated and medicated, and her activity has been sharply curtailed. Defendant claimed that plaintiff came to him with a pre-existent pelvic inflammatory disease, salpingitis, apparently brought on by her history of social activity, necessitating the dilation and curettage, and that there had been perforation of the uterus, "a statistical risk,” but that, if it had caused infection, she did not exhibit any sign thereof, and that there had been no bowel perforation at all. In any event, after both sides had rested, plaintiff’s attorney sought to amend her complaint and bill of particulars to assert a new theory of liability: that defendant, knowing of plaintiff’s internal condition, should not have referred her for the hysterosalpingogram because such a procedure is medically contraindicated in the presence of abdominal infection because of the irritating quality of the radio-opaque substance injected, and was the cause of the flare-up which followed this procedure; further, that this constituted malpractice. (This theory first saw light during the cross-examination of plaintiff’s medical experts, but no attempt was made to introduce it formally into the case until this motion was made.) Over the objection of counsel and in the mistaken belief that there had been testimony on this score as part of plaintiff’s case, and even implying that the theory had actually been mentioned in the bill of particulars, the amendment was permitted. A plea of surprise was rejected. And the court specifically charged the jury on the new theory. This belated injection of a new theory into the case, completely foreign to that disclosed by the bill of particulars, without notice and without opportunity to prepare to meet it and refute it was obviously unfair and prejudicial to defendant. The bill specified malpractice at Doctor’s Hospital (the dilation and curettage) with not a word of the radiological procedure. It is hornbook law that the purpose of pleadings, inclusive of the bill, is to provide a guide to the trial and to limit the issues. The pleadings and bill may not be ignored. It is not enough to justify injection of a new and surprising theory into a plaintiffs case to point out that defendant’s counsel was prepared to cross-examine concerning a possible theory of liability other than that pleaded or particularized. That would be routine preparation for any good trial lawyer readying himself to endeavor to shake a witness’ certainty. Further, a plaintiff must reveal the bases for claimed liability in a pleading and, should it be reasonably necessary to change or add a theory, to apply timely for permission to conform pleading to proof rather than to wait until completion of proof to sort out, evaluate, and label what has been presented to the trier of fact. (See Lake v Lake, 63 AD2d 960.) A trial is manifestly unfair when a party is suddenly called upon to defend on a theory belatedly brought into the case. To what extent the prejudice of this ruling operated will never be known, for the verdict was general. A new trial is required in these circumstances. "On the new trial the jury should be directed to return a special verdict or a general verdict accompanied by written answers to written interrogatories (see CPLR 4111), if multiple theories of malpractice are again involved (Dore v Long Is. R. R. Co., 23 AD2d 502).” (Killeen v Reinhardt, 71 AD2d 851, 853.) Concur—Birns, J. P., Sullivan, Markewich and Lynch, JJ.