MEMORANDUM & ORDER Tarik Dixon, administrator of the estate of Halimah Ali, seeks leave to file a Second Amended Complaint in this medical malpractice action. Dixon filed his original complaint in September of 2020 and amended it in August of 2021. The operative complaint alleges that two hospitals (including one operated by the United States government) negligently failed to diagnose and treat Ms. Ali’s pheochromocytoma (adrenal gland tumor) — a failure that led to her untimely death. Since then, discovery has been conducted fully and closed. The defendants’ summary judgment motions are due February 16, 2024. Dixon sought leave to amend at a pre-motion conference concerning summary judgment briefing. The United States opposed such leave, but the other defendants have taken no position. A court “should freely” grant leave to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). But leave to amend may be denied in cases of, among other things, “futility” and “undue prejudice to the opposing party.” Foman v. Davis, 371 U.S. 178, 182 (1962). The federal government invokes both of those bases here. A. Futility Dixon proposes to amend his complaint to “provide further facts in order to clarify the causation between the allegations of liability and the decedent’s death.” Pl.’s Letter 2, ECF No. 56. The government objects, first, that several of the proposed amendments would be futile. See Gov’t Letter 2, ECF No. 59. Leave to amend will not be denied on grounds of futility, as that analysis would entail much of the same consideration called for by the forthcoming motions for summary judgment themselves. Accordingly, the bulk of the plaintiff’s proposed amendments will be permitted. B. Prejudice The government also opposes one proposed addition on a different basis: that allowing the new allegation would be unduly prejudicial because it would substantially alter the defense theory of liability at too late a stage in these proceedings. See Gov’t Letter 2. This proposed addition would be to Paragraph 73 of the proposed Second Amended Complaint (“SAC”), ECF No. 56-1, which alleges generally that the government’s negligence proximately caused Ali’s death. The proposed addition would follow a new statement concerning the government’s “deviation from the standard of good and accepted medical practice.” SAC 73. It would read: “This [deviation] is further conveyed by the fact that a cardiologist at USA’s ADDABBO HEALTH CENTER misdiagnosed [Ali's] pheochromocytoma as ‘likely related to her pregnancy at the time.’” Id. The cardiologist referred to is apparently Dr. Gagandeep Singh. See Gov’t Letter 2. The government argues that the allegation that the government is “liable…based on” cardiologist Dr. Singh’s misdiagnosis is new, and a fundamental deviation from the theory of the case alleged and presented to date. Gov’t Letter 2. Dr. Singh saw Ms. Ali for the first time in February of 2018. SAC 58. As the government points out, the plaintiff’s first two complaints did not invoke Dr. Singh’s treatment of the plaintiff at all; moreover, they spoke to a course of negligent conduct for which the latest date included in the operative complaint was January 18, 2018 — weeks before Ali saw Dr. Singh. Am. Compl.
