Opinion
July 20, 1970
In a medical malpractice action to recover damages for personal injuries, defendants Pisillo and Deepdale General Hospital appeal from so much of a judgment of the Supreme Court, Queens County, entered March 3, 1969, as is in favor of plaintiff against them upon a jury verdict in the sum of $125,000. Judgment reversed insofar as appealed from, on the law and the facts, and, as between plaintiff and appellants, action severed and new trial granted, with costs to abide the event. We are of the view that it was error to permit plaintiff to amend her pleadings at the close of her proof to set forth a new theory of liability not asserted in the original pleadings. Furthermore, the verdict against appellants on the amended theory is against the weight of the evidence insofar as it implicitly found there was a causal relationship between the alleged negligent administration of a Levine tube down plaintiff's throat and plaintiff's injuries. Martuscello, Acting P.J., Latham, Brennan and Benjamin, JJ., concur; Kleinfeld, J., dissents and votes to affirm the judgment insofar as appealed from.