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November 20, 2009

The Danger of Inadvertent Admissions and the Importance of Careful Pleading

The Appellate Division, Third Department recently considered the effect of facts admitted in an original answer and subsequently denied in an amended answer in a medical malpractice action.

In Kwiecinski v. Hwang, the plaintiff alleged she was given the wrong drug in preparation for surgery. Defendants moved to amend their initial answer asserting that they inadvertently admitted to facts contained in two sentences of paragraph 23 of Plaintiff's Complaint when drafting their original answer. Specifically, in the beginning of paragraph 23, Plaintiff alleged (1) she "was supposed to receive Versed prior to surgery" and (2) "[i]nstead due to the gross negligence and recklessness of defendant[s], plaintiff was given a paralytic agent." In their answer, Defendants responded that "as to the allegations as contained in paragraph numbered 23 of the [c]omplaint, admit the first two sentences and deny knowledge or information sufficient to form a belief as to the remaining allegations."

The lower court allowed Defendants to amend their answer and precluded the Plaintiff from using the admission in Defendants' initial answer at any stage of the litigation. On appeal, the Third Department held that the lower court erred in precluding the use of the admissions contained in the original answer.

The Appellate Division concluded that admissions in an original pleading superseded by an amended pleading remain as evidence of facts admitted. In other words, a fact admitted in the original pleading does not lose its effect as an admission simply because the pleading has been amended. As a result, the Defendant is left to explain the circumstances surrounding the inadvertent original admission at trial and the fact finder will then determine the weight to be afforded to the original admission.

This case underscores the importance of exercising great care in drafting pleadings.

If you require further information regarding the information presented in this Legal Alert and its impact on your organization, please contact any of the members of the Practice Area.

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