| DeCarlo v Eden Park Health Servs., Inc. |
| 2009 NY Slip Op 07559 [66 AD3d 1211] |
| October 22, 2009 |
| Appellate Division, Third Department |
| Daniel Bruce DeCarlo, as Administrator of the Estate of Mary E.Tedesco, Deceased, Respondent, v Eden Park Health Services, Inc., Doing Business as EdenPark Health Care Center, Appellant. |
—[*1] Spiegel & Utera, P.A., Miami, Florida (Tamara L. Klopenstein of counsel, admitted pro hacvice), for respondent.
McCarthy, J. Appeal from an order of the Supreme Court (Lalor, J.), entered September 17,2008 in Greene County, which denied defendant's motion for summary judgment dismissing thecomplaint.
Mary E. Tedesco (hereinafter decedent) was an 87-year-old woman with severe osteoporosisand a host of other medical conditions who, while a nonambulatory resident of defendant'snursing home facility, suffered fractures of her left ankle and right femur, the immediate cause ofwhich is unknown. Plaintiff, as administrator of decedent's estate, brought this action on a theoryof res ipsa loquitur alleging that defendant's negligence resulted in decedent's injuries. SupremeCourt denied defendant's motion for summary judgment and this appeal ensued. We affirm.[*2]
Res ipsa loquitur is an evidentiary doctrine invoked,under appropriate circumstances, "to allow the factfinder to infer negligence from the merehappening of an event" (States v Lourdes Hosp., 100 NY2d 208, 211 [2003]). It may beapplied where a plaintiff has established a prima facie case of negligence showing that the eventis of a kind not ordinarily occurring in the absence of negligence, the defendant had exclusivecontrol over the agency or instrumentality causing the event, and the plaintiff did not voluntarilyact to cause or contribute to the event (see Kambat v St. Francis Hosp., 89 NY2d 489,494 [1997]). A plaintiff need not eliminate the possibility of all other causes, but mustdemonstrate that more likely than not the injury was caused by the defendant's negligence (see Rondeau v Georgia Pac. Corp., 29AD3d 1066, 1069 [2006]).
Decedent's medical records and testimony from defendant's employees indicate that for atleast several months prior to the discovery of her injuries, decedent was nonambulatory andrequired the assistance of one or more of defendant's staff to get in and out of bed and even toreposition herself in bed. On August 5, 2004, one of defendant's employees noticed swelling ofdecedent's right leg while assisting her to the shower. Decedent was subsequently transported tothe emergency room where X rays revealed the fractures. Decedent's left ankle was treated withan air cast, but the fracture of her right femur resulted in amputation above the knee. Shesubsequently returned to the nursing home where she remained until her death in February 2006.Decedent reportedly was asked, but did not know, what caused her injuries.
It is clear that decedent's advanced osteoporosis left her bones in a delicate state. GeraldOrtiz, defendant's expert orthopedist, and Louis DiGiovanni, the orthopedist who evaluateddecedent at the emergency room, opined that decedent's fractures most likely occurred "duringthe course of normal care . . . given her advanced age, her severe osteoporosis andher overall poor medical condition," and were not the result of defendant's negligence. However,plaintiff's expert orthopedist, Louis Nunez, opined that the types of fractures that decedentsuffered do not occur in the course of normal activities, that her severe osteoporosis was acondition that defendant should have taken into consideration in providing care and treatment,and that the nature of the right femur fracture indicated "some sort of torque activity, externaltrauma applied or a direct impact to the knee." He also noted that defendant's records did notdocument the presence of any visitors or any action by decedent that may have contributed to herinjuries. He concluded that the injuries occurred while decedent was under the exclusive controlof defendant and were the result of defendant's negligence. Plaintiff's evidence that decedent wasessentially immobile, under the exclusive control of defendant and that at least one of herinjuries appears to have resulted from the application of some external force presents triableissues as to the proximate cause of decedent's injuries. As such, summary judgment was properlydenied (see Schlanger v Doe, 53AD3d 827, 829-830 [2008]).
Mercure, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, with costs.