Hughes v. Temple

Order unanimously affirmed with costs. Memorandum: In this medical malpractice action, defendant Temple contends that Supreme Court should have granted his motions to dismiss made at the conclusion of plaintiffs’ proof and at the end of the trial because plaintiffs failed to prove proximate cause between any alleged deviations from accepted standards of obstetrical care and the infant plaintiff’s injuries. Defendant concedes, however, that plaintiffs made out a prima facie case on obstetrical deviations and on hypoxia as a cause of cerebral palsy and mental retardation.

Plaintiffs maintain that the infant’s catastrophic injuries resulted from perinatal hypoxia during the mother’s labor and delivery. "To establish a prima facie case plaintiff need not eliminate entirely all possibility that defendant’s conduct was not a cause, but only offer sufficient evidence from which reasonable men may conclude that it is more probable that the injury was caused by defendant than that it was not” (Monahan v Weichert, 82 AD2d 102, 108 ).

When varying inferences are possible, proximate cause presents a question of fact for the jury. Thus, Supreme Court properly denied defendant Temple’s motions to dismiss (see, Monahan v Weichert, supra). (Appeal from Order of Supreme Court, Oneida County, Gilbert, J. — Dismiss Action.) Present— Callahan, J. P., Boomer, Pine, Boehm and Doerr, JJ.