Edson v. Community General Hospital

Order affirmed without costs. Memorandum: Plaintiff was appointed temporary administrator of the Estates of Thomas W. Edson (decedent) and Ruth G. Edson to pursue a complaint on their behalf against defendant, Community General Hospital of Greater Syracuse (Hospital). Decedent was admitted to the Hospital with general symptoms of weakness, disorientation, and fever. While still at the Hospital three days later, decedent awoke and, believing that 974 he was at home, attempted to get out of bed and fell to the floor. Plaintiff alleged that the Hospital was aware of a potential for injury to decedent because of his fever and confusion. Supreme Court properly denied that part of the Hospital’s motion seeking dismissal of the complaint as time-barred and granted that part of plaintiff’s cross motion seeking dismissal of the Hospital’s fourth, fifth, and sixth affirmative defenses. Contrary to the Hospital’s contention, the complaint asserts a negligence cause of action, not a medical malpractice cause of action. The gravamen of the complaint is “the failure to exercise ordinary and reasonable care to insure that no unnecessary harm befell the patient” {Halas v Parkway Hosp., 158 AD2d 516, 517), and “the allegations of the complaint do not involve diagnosis, treatment or the failure to follow a physician’s instructions” {Papa v Brunswick Gen. Hosp., 132 AD2d 601, 603; cf, Scott v Uljanov, 74 NY2d 673, 674-675). The court also properly denied that part of the Hospital’s motion seeking summary judgment dismissing the complaint. The Hospital failed to meet its initial burden of establishing that it exercised reasonable care and diligence in providing for the safety of decedent and thus was not negligent as a matter of law {see generally, White v Sheehan Mem. Hosp., 119 AD2d 989). All concur, Hurlbutt, J., not participating. (Appeal from Order of Supreme Court, Onondaga County, McCarthy, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Green, Pine, Hayes and Hurlbutt, JJ.