        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

332
CA 12-01576
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


ROSEMARY WELSH, AS ADMINISTRATOR OF
THE ESTATE OF JOHN C. WELSH, DECEASED,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ST. ELIZABETH MEDICAL CENTER,
DEFENDANT-APPELLANT.


GALE GALE & HUNT, LLC, SYRACUSE (MATTHEW J. VAN BEVEREN OF COUNSEL),
FOR DEFENDANT-APPELLANT.

BOTTAR LEONE, PLLC, SYRACUSE (AARON J. RYDER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Oneida County (Anthony
F. Shaheen, J.), entered December 13, 2011. The order denied the
motion of defendant for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: This medical malpractice action arises out of an
incident in which plaintiff’s decedent, a developmentally disabled
adult, allegedly sustained injuries, including a fractured hip, as a
result of a fall from an X ray table at defendant hospital. Plaintiff
initially commenced this action as decedent’s guardian and the caption
was amended after decedent died from a cause unrelated to the claims
made in this action. We reject defendant’s contention that Supreme
Court erred in denying its motion for summary judgment dismissing the
complaint. Defendant failed to meet its “ ‘initial burden of
establishing the absence of any departure from good and accepted
medical practice or that the plaintiff[’s decedent] was not injured
thereby’ ” (Humphrey v Gardner, 81 AD3d 1257, 1258; see James v
Wormuth, 74 AD3d 1895, 1895). With respect to decedent’s fall from
the X ray table, defendant failed to present competent proof that it
did not deviate from the applicable standard of care when the
technician left the room to develop the X rays that had just been
taken, with decedent still on the table.

     Contrary to defendant’s further contention, it also failed to
establish as a matter of law that decedent’s injuries were not caused
by the fall that is the subject of this action (see Humphrey, 81 AD3d
at 1258). In support of its motion, defendant offered the affidavit
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                                                         CA 12-01576

of decedent’s physician who opined that, based on hospital records and
his prior knowledge of decedent, the subject fall did not cause
decedent’s hip fracture and other injuries for which damages are
sought in this action. The record establishes that decedent remained
in the hospital for about four days after the subject fall, when he
was discharged under plaintiff’s care, and that his hip fracture and
other injuries were diagnosed and treated approximately four days
after that initial discharge, when he was readmitted to the hospital.
We conclude that defendant failed to meet its initial burden on the
issue of causation because, inter alia, the proof regarding decedent’s
symptoms and physical condition between the date of his fall and
initial discharge is inconsistent, and defendant failed to present
proof of an alternative cause of decedent’s hip fracture and other
injuries.




Entered:   March 22, 2013                      Frances E. Cafarell
                                               Clerk of the Court
