The plaintiff, Jacqueline McDermott, appeals an order of the trial court granting summary judgment to the defendants, Cynthia Paciulli, M.D., Atlantic Surgical Associates and HCA Health Services d/b/a Portsmouth Regional Hospital. McDermott argues that the trial court erred in concluding that her proposed amended writ did not relate back to her original writ. We affirm.
We briefly restate the procedural history of this case. The plaintiff filed a negligence action in May 2010, citing care that she received from the defendants in June 2007. The defendants filed a motion for summary judgment in September 2010. On November 1, 2010, the plaintiff filed a motion to amend her writ, to which the defendants objected. The trial court granted the motion to amend. The defendants then filed a motion to reconsider, arguing that the court had failed to address their argument that the amendment sought to add a new theory of liability and was therefore barred by the statute of limitations. The trial court granted reconsideration, vacated its previous order granting the plaintiff's motion to amend her writ, and vacated its prior denial of the defendants' motion for summary judgment.
We turn to whether the trial court properly denied the plaintiff's motion to amend her cause of action. RSA 514:9 (2007) provides: "Amendments in matters of substance may be permitted in any action, in any stage of the proceedings, upon such terms as the court deems just and reasonable, when it shall appear to the court that it is necessary for the prevention of injustice; but the rights of third parties shall not be affected thereby."
Absent an unsustainable exercise of discretion, we will affirm the trial court's decision to deny a motion to amend. Thomas v. Telegraph Publishing Co., 151 N.H. 435, 439 (2004) (affirming decision of trial court to deny motion to amend writ to add new cause of action after statute of limitations had run because to allow amendment would prejudice defendants). Generally a court should allow amendments to pleadings to correct technical defects but need only allow substantive amendment to prevent injustice. Id. A substantive amendment that requires substantially different evidence may be properly denied. Id.
In this case, the plaintiff's original writ alleged medical negligence. The specific allegations were that the defendants: (1) "failed in their duties . . . to give proper discharge instructions specific for the surgical procedure performed by defendant on the plaintiff"; and (2) "failed to properly address and instruct the plaintiff regarding appropriate dietary management during the recovery period." In the course of discovery, the plaintiff disclosed that she had not eaten anything between the time that she was discharged and then returned to be admitted for further treatment. She then sought to amend her writ to add claims based upon the defendants' failure to: (1) "provide the requisite level of care during the surgery on plaintiff"; (2) "provide her with an appropriate diet post-surgery"; and (3) "to act pursuant to accepted standards of care in discharging her."
In its order, the trial court ruled: "Because the pleadings confirm the fact that the original cause of action alleged cannot be maintained inasmuch as the plaintiff's re-admission to the hospital was not due to improper discharge instructions or inappropriate dietary management information, and because the new alleged causes of action are outside of the statute of limitations, the Court is compelled to dismiss this case in its entirety." At oral argument, the plaintiff's counsel conceded that the plaintiff's motion to amend added a new allegation challenging whether reasonable professional standards were met in the performance of the plaintiff's surgery. Given this concession, we affirm the trial court's decision to deny amendment to allow this admittedly new claim.
We must then determine whether the trial court's decision to deny amendment to allow claims alleging negligence in: (1) providing an appropriate post-surgery diet; and (2) acting pursuant to accepted standards of care in discharging her, is sustainable. We do not read the plaintiff's brief, as do some of the defendants, to request that we adopt a new standard in reviewing trial court rulings on motions to amend. In any event, as those defendants duly note, that argument was not advanced in the trial court and, therefore, has not been preserved for appellate review. See N.H. Dep't of Corrections v. Butland, 147 N.H. 676, 679 (2002).
In its order, the trial court noted that although "a plaintiff does not have to detail with finite precision all of his or her claims of negligence, a plaintiff is required to identify negligence specifically enough to allow a defendant to understand the claim. That is particularly true in medical negligence cases because the subject matter requires different specialties and a defendant needs to know what part of his or her treatment is being challenged so that the appropriate evidence can be summonsed to defend the claim."
In this case, the newly pleaded claims would require different evidence and potentially affect third parties against whom recovery could not otherwise be sought given the expiration of the statute of limitations. Accordingly, we affirm the decision of the trial court.
HICKS, CONBOY and LYNN, JJ., ...