dissents and would reverse the order appealed from, grant the appellant’s motion for judgment as a matter of law, and dismiss the complaint, with the following memorandum. I would reverse the order in favor of the plaintiff, grant the appellant’s motion for judgment as a matter of law, and dismiss the complaint because, as I read the instant record, the plaintiff failed to present any competent proof at trial of negligence on the part of the appellant. Further, he failed to establish that he had suffered any compensable damage as a result of the actions of the appellant’s agents.
The plaintiff, an intravenous drug user for some 19 years, was admitted to the appellant Brooklyn-Caledonian Hospital on June 30, 1987, suffering from a collapsed lung due to a severe asthma attack. The plaintiff was also experiencing heroin withdrawal, having had his last injection two days before. It is not disputed that the plaintiff’s condition constituted an "emergency” situation requiring the use of intravenous lines for the administration of essential medications.
Some 10 separate attempts were made to insert a needle into various veins in the plaintiff’s arms, but each time the needle infiltrated, or punctured the vein, because the plaintiff’s vasculature had been damaged by his two decades of intravenous drug use.
In order to circumvent these difficulties, Dr. James Szalados undertook to insert a catheter into the plaintiff’s subclavian vein. However, this catheter soon infiltrated, and, when he was informed of this fact by the attending nurse, Dr. Szalados withdrew the catheter and threw it away. Thereafter, the emer*555gency room attending physician, Dr. Rice, inserted an intravenous line into the plaintiffs right femoral vein, in the groin. Subsequently, a chest X-ray revealed that the tip of the plastic subclavian catheter had broken off and remained in the plaintiffs body. Dr. Szalados retrieved the catheter from the waste disposal unit and confirmed that the tip had indeed broken off.
It was the opinion of the various surgeons who were consulted on the matter that surgical removal of the catheter tip would be difficult, whereas leaving it in the plaintiffs body would pose no danger to the plaintiffs health.
Thereafter the plaintiff developed thrombophlebitis in his right leg, a known complication of femoral intravenous line use. After anticoagulant therapy, the phlebitis resolved itself. On July 24, 1987, the plaintiff left the appellant hospital "against medical advice”, and, after missing two scheduled appointments and failing to take his medication, on August 22, 1987, the plaintiff was readmitted to the appellant hospital for treatment of another bout of phlebitis. Following his discharge on August 24, 1987, the plaintiff failed to keep his next clinic appointment, and indeed never again returned to the appellant hospital.
According to the plaintiffs theory of liability, based on the testimony of his expert Dr. Richard Bassin (who had reviewed the plaintiff’s hospital record but had never personally examined him), the appellant was negligent in not requiring supervision of Dr. Szalados during his insertion of the subclavian catheter. According to Dr. Bassin, Dr. Szalados was fresh out of medical school, on his first day of internship, and was not qualified to perform such a procedure on his own. At the very least, Dr. Bassin opined, Dr. Szalados should have been supervised by "an experienced resident who has done many of these procedures”. On cross-examination, however, Dr. Bassin admitted that he knew nothing about Dr. Szalados’s "exact experience” with catheters, reiterating his belief that the younger physician had "just finished medical school”. In fact, Dr. Szalados, who testified after Dr. Bassin, explained that at the time of these events he was a second-year resident with extensive experience in catheter insertion, and fully qualified to perform such procedures without supervision. Accordingly, because Dr. Bassin’s opinion regarding Dr. Szalados’s experience and need for supervision was not based upon the facts in the record, nor upon any personal knowledge of the facts, it was incompetent, and the verdict of liability predicated upon it should not stand (see, e.g., Kracker v Spartan Chem. Co., 183 *556AD2d 810; Lipsius v White, 91 AD2d 271; see also, Cassano v Hagstrom, 5 NY2d 643; Matter of Miller v National Cabinet Co., 8 NY2d 277).
In addition, Dr. Bassin repeatedly testified that the breaking off of the catheter tip alone sufficed to prove that the defendants were negligent and had departed from accepted medical standards. However, it is well established that the mere happening of an accident or injury is not, without more, proof of a departure or of negligence on the part of a defendant (see, e.g., Saliaris v D’Emilia, 143 AD2d 996; Henry v Bronx Lebanon Med. Ctr., 53 AD2d 476; Wieland v Third Ave. Tr. Corp., 270 App Div 885, affd 296 NY 1047).
Dr. Bassin’s misleading testimony was compounded by the court’s error in charging the jury on the doctrine of res ipsa loquitur. The appellant had presented evidence that catheter tips sheared off on occasion without negligence on anyone’s part, and there was also testimony that the plaintiff, who had been told to remain still during the catheter-insertion procedure, moved unexpectedly in the midst of it. This case is therefore not a proper one for a res ipsa loquitur charge, inter alia, because the shearing off of the catheter tip could have occurred in the absence of negligence, as well as because the appellant’s agent was not necessarily in full control of the instrumentality that caused the injury (see, e.g., Ebanks v New York City Tr. Auth., 70 NY2d 621, 623; Dermatossian v New York City Tr. Auth., 67 NY2d 219; Feblot v New York Times Co., 32 NY2d 486; Raimondi v New York Racing Assn., 213 AD2d 708; Troisi v Merit Oil Co., 208 AD2d 615; DeSimone v Inserra Supermarkets, 207 AD2d 615; Cornacchia v Mount Vernon Hosp., 93 AD2d 851). In addition, it is by no means impossible that the plaintiff contributed to the shearing off of the catheter tip, and information as to the true explanation for the event is not any more readily accessible to the appellant than to the plaintiff (see, e.g., Cornacchia v Mount Vernon Hosp., supra).
The majority makes much of certain evidence suggesting that the plaintiff did not move during the procedure, as well as other testimony suggesting that the plaintiff had been so "agitated” prior to the catheterization that Dr. Szalados should not have attempted the insertion without assistance and/or restraints. However, in my opinion, these and other discrepancies in the evidence regarding the central issue in the case, namely whether Dr. Szalados properly exercised his professional judgment under the circumstances, should have been submitted to the jury with conventional instructions on *557negligence and the credibility of witnesses. Instead, the court’s misguided res ipsa loquitur charge reinforced Dr. Bassin’s "accident equals malpractice” testimony, and essentially compelled the jury to find the appellant liable.
Even assuming that the plaintiff had succeeded in proving some breach of duty by the appellant, he failed to submit any admissible evidence that the breach had resulted in a compensable injury.
The court erred in granting the plaintiff’s last-minute application to be allowed to testify that he suffered from continuing phlebitis and had become readdicted to heroin as a result of the broken catheter tip, when these "injuries” had never been pleaded or alleged in a bill of particulars over the seven years that the action was pending (Zapata v City of New York, 96 AD2d 779; Mammarella v Consolidated Edison Co., 44 AD2d 571; D’Onofrio v Davis, 14 AD2d 960; Siegel, NY Prac § 242, at 362 [2d ed]). The prejudice to the appellant is self-evident, as there was no way that it could reasonably have been expected to be prepared for the variance at trial (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3025:15, at 364).
In addition, the plaintiff presented no medical evidence of continuing phlebitis after his second discharge from the appellant hospital, let alone evidence that such a condition could be traced to any negligence on the part of the appellant rather than to his own intravenous drug use (Derdiarian v Felix Contr. Corp., 51 NY2d 308; Gonzales v Fuchs, 69 AD2d 831). Moreover, the plaintiff’s novel contention that he had been drug-free for two years prior to his admission to the appellant hospital is belied by the record, which reflects that he had injected heroin two days before his admission, and that he repeatedly requested Methadone to help him endure the withdrawal he was experiencing during his inpatient stay.
The plaintiff’s damages are thus reduced to the speculative fear that a small plastic catheter tip that is encased in scar tissue in his clavicle area and that has not moved in eight years, might suddenly begin to migrate and cause him harm. This fear of the plaintiff was supported at trial only by the conjecture of his expert, Dr. Bassin, who testified as follows: "The risk is that catheters do move, and if this catheter that’s inside him moves, it could burrow into a vein or an artery, it can even burrow into the subclavian, patient could bleed to death, or if the patient has strenuous activity, physical activity and moves, that catheter could move. The catheter could also work its way to the outside. That’s been known to happen, and *558then you get infections that occur, and then it makes it even more difficult. But since the operation is so difficult to do, I would recommend close monitoring this catheter and not going back in now and operating”. These dire predictions of possible future injury were not otherwise supported at trial by X-rays or any other scientific evidence documenting that the catheter tip had moved at all since 1987. Indeed, Dr. Bassin acknowledged that if the fragment did not move, the plaintiff would suffer no damage from its presence in his body, and could lead a normal life. The record before us establishes that the foreign object encased in scar tissue in the plaintiff’s clavicle area has had absolutely no adverse effect on his quality of life to date.
Accordingly, I would reverse the order appealed from, grant the appellant’s motion to set aside the verdict, and dismiss the complaint.