Photo: Jodi Jacobson/iStockphoto.com

In a wide-ranging medical malpractice decision, a state appeals court is allowing to go forward some, but not all, claims against St. Barnabas Hospital in a case based on allegations that medical professionals negligently performed an ultrasound on a pregnant mother despite her placenta previa diagnosis, allegedly resulting in a placental hemorrhage that caused her child brain damage and developmental delays.

Among the claims that will go forward under the Appellate Division, First Department's opinion issued Thursday is a central medical malpractice claim against St. Barnabas.

In regard to that claim, the unanimous panel wrote that the Bronx-based hospital had established prima facie that there wasn't a departure from good and accepted medical practice when it submitted an expert opinion that said a 2007 transvaginal ultrasound done on the mother could not have caused her to have a placental hemorrhage because films of the ultrasound showed that the probe did not disturb her cervix.

But the panel pointed out that the plaintiffs—which appear to include the child's mother—raised a factual issue by submitting their own expert opinion that said, according to the panel, that there was a "very real likelihood that the placenta [could] be disrupted by putting the vaginal probe inside the vagina" and that that is what happened here.

"This [oppositional expert] opinion was sufficient to preclude summary judgment," panel Justices David Friedman, Barbara Kapnick, Jeffrey Oing and Anil Singh then wrote.

They continued, "Contrary to St. Barnabas's contention, the TVU [transvaginal ultrasound] films do not constitute dispositive proof. The films consist of still photos taken at discrete points in time during the procedure, and the possibility cannot be ruled out that the probe was inserted into the cervix at a time not pictured or that the injury was created by the probe after the last photo was taken."

The panel's opinion affirmed part of Bronx Supreme Court Justice Wilma Guzman's 2018 decision regarding the long-running lawsuit, which was lodged in 2009.

Guzman denied St. Barnabas Hospital's dismissal motion aimed at all of the related claims lodged against it, except for certain vicarious liability claims, according to the panel.

In its opinion, the panel reversed Guzman by dismissing a lack of informed consent claim brought by the plaintiffs, which according to the caption of the panel's decision include "A—, an Infant by His Mother and Natural Guardian."

Other plaintiffs were not listed in the decision, although it indicated there are others. The mother and child were not named in the decision. Not all of the named defendants were listed, and underlying court records online did not appear to name each of them.

Reversing Guzman's decision on the lack of informed consent claim lodged by the plaintiffs, the panel wrote that "plaintiffs' lack of informed consent claim must be dismissed, because it was not St. Barnabas's responsibility to obtain the consent" from the mother before the transvaginal ultrasound was performed.

The case record "demonstrates that the TVU was ordered by a Network employee," meaning an employee of co-defendant Network OB/GYN, P.C, which the panel explained was an entity that ran the obstetrical and gynecological practice at the hospital pursuant to a contract with St. Barnabas.

"St. Barnabas's expert opined that the responsibility for obtaining consent 'rests entirely with the attending physician who ordered [the test], not with the technician who carries out the … order,' and this opinion is unrebutted" in the case, the panel explained.

The panel also overruled Guzman by deciding that "St. Barnabas is entitled to the dismissal of the claims based on vicarious liability for alleged negligence by doctors against whom this action has already been dismissed—i.e., David Green, M.D. and Mumtaz M. Master, M.D."

But, said the panel, "St. Barnabas is not entitled to summary judgment dismissing claims based on vicarious liability for the conduct of its employees, because plaintiffs raised an issue of fact whether any St. Barnabas employees committed independent acts of negligence."

"Although its employees were not responsible for the determination to order a TVU, St. Barnabas may be liable if its employee performed the TVU negligently or it failed to properly supervise the procedure," the panel wrote.

Thomas Cooper, a senior associate at Garbarini & Scher, represented St. Barnabas, and could not be reached on Friday.

Merryl Weiner, a partner at Meagher & Meagher, represented the plaintiffs, and did not immediately comment when reached.