In a medical malpractice case against St. Barnabas Hospital, A-A- v. St. Barnabas Hospital, 2019 NY Slip Op 07695 (1st Dept., Oct. 24, 2019),[1] a New York appellate court recently held that the plaintiff had provided enough evidence to maintain its case and go to trial. , plaintiffs alleged that the hospital’s staff was negligent in performing the transvaginal ultrasound (“TVU”) on the pregnant mother despite a prior diagnosis of placenta previa[2], leading to placental hemorrhage, which caused brain damage and developmental delays in the baby.

The St. Barnabas Hospital case presents the opportunity for us to go over some fundamental elements of medical malpractice law in New York.

Malpractice is defined as professional negligence, and medical malpractice is the negligence of a physician. Negligence is failing to use reasonable care under the circumstances, doing something that a reasonably prudent doctor would not do under the circumstances or failing to do something that a reasonably prudent doctor would do under the circumstances.[3] Ordinarily, expert medical opinion evidence is necessary for plaintiffs to establish malpractice.

To establish a claim for medical malpractice against a physician, a patient-plaintiff must show: (1) a duty owed by the physician to the patient; (2) a breach of that duty by the physician; (3) and the physician’s breach of duty proximately caused an injury to the plaintiff.[4]

Physicians also must provide certain information about proposed medical treatment including any alternatives and the reasonably foreseeable risks of the operation, procedure or medication. The physician must explain such before obtaining a patient’s consent to an operation or invasive diagnostic procedure or using medication. Since 1975, claims against physicians for lack of informed consent have been based on N.Y. Public Health Law § 2805-d. This claim also requires medical expert opinion evidence.

To show a claim for lack of informed consent, plaintiffs must establish that the physician did not disclose material risks, benefits, and alternatives to the treatment or procedure and that a reasonably prudent person in the patient’s position would not have undergone that treatment or procedure had they received the full information required.

A medical malpractice claim against a hospital can exist if it was negligent and breaches its duty to use reasonable care in the hiring and supervising its employees including members of the medical staff such as doctors, interns, residents and nonphysician personnel such as nurses, technicians and aids. Hospitals also may be negligent if they violated state regulation. Hospitals may also be vicariously liable for the malpractice of its employees under general principles of respondent superior (legal doctrine that holds the employer liable for any wrongful act of its employees).[5]

Peter Yoars has over 20 years of experience in defending and prosecuting medical malpractice claims against physicians and hospitals. Peter spent several years as litigation counsel for an extensive health system that encompassed 40 hospitals, working with its risk management team on internal investigations, peer reviews, claims, litigation, mediations. As highlighted by this relationship of trust, Peter’s hallmarks as an attorney are his ability to vet his clients’ business and legal situations, communicate clear legal strategy to senior executives and bring exceptional value to his clients.

At Yoars Law, we focus on being proactive business and legal advisors for their clients, guiding them through the complex legal issues that arise in the medical profession and health industry. This includes being a zealot advocate when needed.

[1] A copy of the decision is located at

[2] Placenta Previa is a condition where the placenta lies low in the uterus and partially or completely covers the cervix. The placenta may separate from the uterine wall as the cervix begins to dilate (open) during labor. Further information located at

[3] Pike v. Honsinger, 155 N.Y. 201, 49 N.E. 760 (1898)

[4] See Fernandez v. Elemam, 25 A.D.3d 752, 809 N.Y.S.2d 513, 514 (2d Dep’t 2006); 4 New York Practice Guide: Negligence § 35.01 (2019).

[5] Kavanaugh v. Nussbaum, 71 N.Y.2d 535, 528 N.Y.S.2d 8, 523 N.E.2d 284 (1988).

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