Smartt v Ricketts-Holcomb 2026 NY Slip Op 30736(U) February 27, 2026 Supreme Court, Kings County Docket Number: Index No. 501999/2023 Judge: Consuelo Mallafre Melendez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.5019992023.KINGS.001.LBLX036_TO.html[03/11/2026 3:45:51 PM] FILED: KINGS COUNTY CLERK 02/27/2026 05:31 PM INDEX NO. 501999/2023 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/27/2026
At an IAS Term, Part MMESP7 of the Supreme Court of the State of NY, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 27th day of February, 2026
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------------X NATASHA SMARTT and DEVON SMARTT, as Administrators of the Estate of D.S., Deceased, NATASHA DECISION & ORDER SMARTT, Individually and DEVON SMARTT, Individually, Index No. 501999/2023 Plaintiffs, Mo. Seq. 1
-against-
LISA RICKETTS-HOLCOMB, M.D., MELISSA PHILADELPHIA, M.D., GABRIEL TERBANCEA, M.D., ASMA AHMAD, M.D. and NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (KINGS COUNTY MEDICAL CENTER),
Defendants. --------------------------------------------------------------------------X HON. CONSUELO MALLAFRE MELENDEZ, J.S.C. Recitation, as required by CPLR §2219 [a], of the papers considered in the review: NYSCEF #s: 31 – 59, 60 – 72, 74
Defendants Lisa Ricketts-Holcomb, M.D. (“Dr. Ricketts-Holcomb”), Melissa
Philadelphia, M.D. (“Dr. Philadelphia”), Gabriel Terbancea, M.D. (“Dr. Terbancea”), Asma
Ahmad, M.D. (“Dr. Ahmad”), and New York City Health and Hospitals Corporation
(“NYCHHC”), sued herein as “New York City Health and Hospitals Corporation (Kings County
Medical Center”), move for an Order, pursuant to CPLR 3212, granting summary judgment in
their favor (Seq. No. 1).
Plaintiffs oppose the motion as to Dr. Ricketts-Holcomb, Dr. Philadelphia, and
NYCHHC.
Plaintiffs do not oppose the motion as to anesthesiologist Dr. Terbancea or neonatologist
Dr. Ahmad. Accordingly, the part of the motion seeking summary judgment in their favor is
1 of 16 [* 1] FILED: KINGS COUNTY CLERK 02/27/2026 05:31 PM INDEX NO. 501999/2023 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/27/2026
granted without opposition, and all Plaintiffs’ claims against Dr. Terbancea and Dr. Ahmad are
dismissed. The vicarious liability claims against NYCHHC for the alleged acts and omissions of
Dr. Terbancea and Dr. Ahmad are also dismissed.
Plaintiffs commenced this action on January 19, 2023, asserting claims of medical
malpractice and lack of informed consent in connection with the labor and delivery of infant D.S.
on June 28, 2022. Plaintiffs also assert claims for loss of services.
Prior to the events at issue, the Plaintiff mother had received prenatal care through the
ob/gyn clinic at Kings County Medical Center, a NYCHHC facility. She was 36 years old and
had four children, two born before 2005 and one delivered by c-section in 2018. She had
delivered her last child by Vaginal Birth After C-section (“VBAC”) in July 2021.
On May 27, 2022, Plaintiff was examined by ob/gyn Dr. Philadelphia at 33 weeks
gestation. Dr. Philadelphia noted the mother’s risk factors including her advanced maternal age,
obesity, previous c-section, multiparity (multiple prior births), fibroids, short interval between
pregnancies, and gestational diabetes mellitus. Dr. Philadelphia noted the patient was “counseled
about Cesarean delivery vs TOLAC [trial of labor after cesarean]; risks/benefits d/w pt and she
desires TOLAC.”
On the evening of June 26, 2022, the mother presented to Kings County Medical Center
with intermittent contractions and hypertension. She was admitted for induction of labor. Dr.
Ricketts-Holcomb was the attending physician directing her care from approximately 10:30 a.m.
on June 27, 2022. Dr. Ricketts-Holcomb ordered an intra-cervical balloon for cervical ripening,
which was placed at 11:42 a.m.
Between 6:00 p.m. and 7:00 p.m., the mother reported pain at an “8” and vaginal
pressure, and she was started on epidural anesthesia. A nursing note from 8:25 p.m. noted “pain,
2 of 16 [* 2] FILED: KINGS COUNTY CLERK 02/27/2026 05:31 PM INDEX NO. 501999/2023 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/27/2026
vaginal bleeding, leakage of fluid.” Plaintiff testified that the intra-cervical balloon had blood on
it when it was expelled around 9:00 p.m.
Dr. Ricketts-Holcomb started the mother on Pitocin around 9:29 p.m. at 2 milli-units per
minute. The dosage was increased every half hour. Dr. Ricketts-Holcomb testified that she
turned over management of the patient to Dr. Philadelphia, the incoming attending ob/gyn, at
12:00 a.m. on June 28.
According to the medical record, there was a loss of contact in the fetal heart strips from
2:08 a.m. until 2:34 a.m., and additional instances of loss of contact through 2:51 a.m. Dr.
Philadelphia examined the patient and reestablished contact. Dr. Philadelphia noted that the
mother was receiving Pitocin at 20 milli-units per minute, but her contractions remained
irregular.
The mother testified that she continued having abnormal and intense labor pains “for
hours,” and that she told nurses that “this is my fifth child and I know something is different.” A
nursing summary of care documented that at some point prior to 4:25 a.m., the patient had
“complained of increase in labor, stated epidural is not working anymore,” and she was
instructed to use the “epidural pump clicker” and perform “deep breathing exercise.”
The fetal heart monitoring strips documented loss of contact again at 4:04 a.m., and for
an extended period from 4:13 a.m. through 4:29 a.m. Around this time, Dr. Ricketts-Holcomb
returned to examine the mother and found there had been a loss of station. She called a c-section
for suspected uterine rupture.
The “stat” c-section was called by Dr. Ricketts-Holcomb at some time between 4:25 a.m.
(the “date of service” recorded by a nurse in the chart the following day) and 4:48 a.m. (the time
noted as “procedure prep complete”), though the exact time is disputed by the parties. The
3 of 16 [* 3] FILED: KINGS COUNTY CLERK 02/27/2026 05:31 PM INDEX NO. 501999/2023 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/27/2026
operative report notes that the c-section was performed by Dr. Ricketts-Holcomb with the
assistance of Dr. Philadelphia. The procedure began at 5:02 a.m. and the infant D.S. was
delivered at 5:05 a.m. She was apneic and limp at birth and had APGARS scores of 1/1/3. The
infant was brought to the NICU and later transferred to Bellevue Hospital at 12:50 p.m. It is
undisputed that she sustained hypoxic ischemic encephalopathy and was treated for multiple
seizures in the hours after birth.
The infant D.S. spent the remainder of her life between hospitals, nursing homes, and at-
home hospice care due to brain damage, additional seizures, and the need for 24-hour respiratory
support. She passed away on April 27, 2023, at 10 months old.
Plaintiffs allege that Defendants Dr. Ricketts-Holcomb, Dr. Philadelphia, and NYCHHC
departed from the standard of care by attempting VBAC labor and failing to timely order and
perform a c-section. They also allege the mother was not properly informed of the risk of uterine
rupture before consenting to VBAC and administration of Pitocin to induce or augment labor.
They allege these departures proximately caused the uterine rupture, prolonged fetal
compromise, and the infant’s injuries including brain damage and death.
In evaluating a summary judgment motion in a medical malpractice action, the court
considers the “essential elements” of medical malpractice: “(1) a deviation or departure from
accepted medical practice, and (2) evidence that such departure was a proximate cause of injury”
(Miller-Albert v EmblemHealth, 231 AD3d 1147, 1148 [2d Dept 2024] [internal quotation marks
and citations omitted].) “Thus, a defendant moving for summary judgment must make a prima
facie showing either that there was no departure from accepted medical practice, or that any
departure was not a proximate cause of the patient's injuries. To meet that burden, a defendant
must submit in admissible form factual proof, generally consisting of affidavits, deposition
4 of 16 [* 4] FILED: KINGS COUNTY CLERK 02/27/2026 05:31 PM INDEX NO. 501999/2023 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/27/2026
testimony and medical records, to rebut the claim of malpractice.” (I.d.) “If the defendant makes
such a showing, the burden shifts to the plaintiff to raise a triable issue of fact as to those
elements on which the defendant met its prima facie burden of proof” (Delia v Wieder, 236
AD3d 857, 858 [2d Dept 2025]). “Generally, summary judgment is not appropriate in a medical
malpractice action where the parties adduce conflicting medical expert opinions” (Garcia v
Hollander, 241 AD3d 651, 653 [2d Dept 2025] [internal quotation marks and citations omitted].)
However, “expert opinions that are conclusory, speculative, or unsupported by the record are
insufficient to raise triable issues of fact” (Barnaman v Bishop Hucles Episcopal Nursing Home,
213 AD3d 896, 898-899 [2d Dept 2023]).
In support of their motion, NYCHHC submits an expert affirmation from Thomasena
Ellison, M.D. (“Dr. Ellison”), a licensed physician board certified in obstetrics and gynecology.
Dr. Ellison opines that despite the mother’s risks factors, “attempting a vaginal delivery
was appropriate.” In general, the expert states that a c-section poses “greater risks to both the
infant and the mother” than vaginal birth. The expert also opines that allowing the mother a trial
of labor/VBAC was justified, because after her 2018 c-section, she had successfully delivered
another child by VBAC in 2021. The expert also opines that Cytotec was contraindicated to
induce labor after a c-section, and therefore it was not administered. However, the expert opines
that the use of Pitocin to “promote further dilation of the cervix” and “establish a regular
contractions pattern” was in accordance with the standard of care.
The expert further opines that fetal heart monitoring was continuous and reassuring
throughout the early part of the mother’s labor, and there were no signs that a c-section was
necessary. The expert opines that based on these reassuring fetal heart tracings, “allowing the
mother to labor and deliver vaginally was the best choice over a C-section” and the
5 of 16 [* 5] FILED: KINGS COUNTY CLERK 02/27/2026 05:31 PM INDEX NO. 501999/2023 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/27/2026
administration and titration of Pitocin was appropriate. The expert opines that the patient was
“continuously monitored satisfactorily through electronic fetal monitoring,” and the category I
fetal heart tracings remained reassuring “from approximately 9:00 p.m. on June 27, 2022, to 4:00
a.m. on June 28, 2022.”
The expert acknowledges that there was a loss of contact in the fetal heart strips between
2:04-2:34 a.m., then between 4:13-4:29 a.m. However, the expert opines that “each time contact
was lost, continuous fetal heart rate monitoring was reestablished,” and there was “no reason to
perform a C-section at those times.”
The expert notes that the mother’s “first complaints of pain and vaginal pressure” were
recorded at approximately 6:00 p.m., at which time she was examined by Dr. Ricketts-Holcomb.
The expert states that the pain was well controlled with epidural placement until 4:00 a.m. the
morning of June 28. The expert states that the patient began to complain of increased labor pain
at 4:25 a.m., and an epidural bolus was administered at 4:40 a.m. by the anesthesiologist. The
expert then states, “According to the fetal heart strips, there was a loss of contact at 4:48 a.m.
The fetal heart rate monitoring could not be reestablished and was unobtainable at that time.”
The expert opines that Dr. Ricketts-Holcomb appropriately examined the patient and called for a
c-section due to this loss of station and suspected uterine rupture.
The expert opines that “uterine rupture is an acute event and would not have been
ongoing for several hours.” Based on the medical records, she opines there was no evidence that
the rupture was ongoing or recognizable prior to 4:48 a.m. She opines that the infant was
delivered “within 20 minutes” based on the 4:48 a.m. stat order, which the expert opines was
within the 30-minute standard of care. Therefore, the expert opines that no departure from the
standard of care was a proximate cause of injury to the infant.
6 of 16 [* 6] FILED: KINGS COUNTY CLERK 02/27/2026 05:31 PM INDEX NO. 501999/2023 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/27/2026
In opposition, Plaintiffs submit an expert affirmation from a licensed physician [name of
expert redacted], board certified in obstetrics and gynecology. Plaintiffs presented a signed,
unredacted copy of the affirmation to the Court for in camera inspection.
Plaintiffs’ expert opines that it was a departure from the standard of care to allow the
mother to proceed with a VBAC trial and induce labor with Pitocin rather than recommend and
perform a c-section from the outset. The expert opines that VBAC should not have been
considered an appropriate option due to her multiple high-risk factors, including “substantial
uterine trauma from prior pregnancies, a prior c-section, a prior delivery less than one year
before, advanced maternal age, a history of gestational hypertension, obesity, and uterine
fibroid.” Although some of these factors were present in the birth of her previous child in July
2021, the expert notes that the short interval between that birth and her current pregnancy (less
than one year) was an additional risk factor. The expert further opines that her risk of uterine
rupture would be elevated by induction or augmentation of labor with Pitocin. In light of her
known history and her presentation on June 26, 2022, the expert opines that she was “not a safe
candidate for VBAC” and the standard of care required a c-section. They opine that VBAC and
augmented labor with Pitocin were contraindicated for a patient in these circumstances, and
therefore the NYCHHC physicians deviated from good and accepted medical practice.
The expert also opines that Dr. Philadelphia and Dr. Ricketts-Holcomb failed to
recognize the signs and symptoms of a developing uterine rupture and timely call for a c-section.
According to the expert, these signs include “severe maternal abdominal pain, loss of fetal
station, abnormal or nonreassuring fetal heart rate patterns, vaginal bleeding, and irregularity of
uterine contractions.” The expert opines that whenever a patient attempts VBAC, “any
combination of these findings should immediately raise suspicion for uterine rupture and prompt
7 of 16 [* 7] FILED: KINGS COUNTY CLERK 02/27/2026 05:31 PM INDEX NO. 501999/2023 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/27/2026
a stat cesarean.” The expert opines that the mother’s “escalating warning signs over many hours”
included severe pain, vaginal bleeding, irregular contractions, and loss of contact of the fetal
heart rate strips. The expert notes that her induction balloon was “visibly covered in blood” when
it was expelled at 9:00 p.m., and the records and Plaintiffs’ testimony reflect that she was in
severe and abnormal pain throughout the evening of June 27. A progress note from 8:25 p.m.
reflected she had pain and vaginal bleeding. Plaintiffs’ expert opines that these symptoms,
particularly combined with her known risk factors, should have led the physicians to cease the
VBAC attempt and call for an emergency c-section.
In addition, there were repeated loss-of-contact readings on the fetal heart rate strips
between 2:08 a.m. and 2:51 a.m. The expert opines that “repeated inability to maintain
continuous fetal monitoring is itself a red flag requiring immediate physician assessment.” The
expert counters the opinion of the movant’s expert that the fetal heart rate remained “reassuring”
once contact was re-established, stating that “the fetus was effectively unmonitored during
critical periods . . . during which the rupture was progressing.”
Dr. Philadelphia examined the mother at 2:15 a.m. and noted irregular contractions and a
plan for artificial rupture of membranes if the labor did not progress. The expert opines that Dr.
Philadelphia departed from the standard of care by failing to consider the mother’s signs of
repeated loss of contact, pain, and bleeding and order an emergency c-section at that time. The
expert also notes that the mother testified her pain worsened in severity despite an epidural. The
expert opines that “her complaints were minimized” by nursing staff and physicians, rather than
recognized as a sign of stress to her uterine wall and impending uterine rupture.
The expert states that the fetal heart strips began to document “nearly continuous loss of
contact” beginning at 4:04 a.m., with no fetal heart tracings from 4:13 a.m. to 4:29 a.m. The
8 of 16 [* 8] FILED: KINGS COUNTY CLERK 02/27/2026 05:31 PM INDEX NO. 501999/2023 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/27/2026
expert opines this represented “a catastrophic monitoring failure in a high-risk VBAC patient.”
Dr. Ricketts-Holcomb found loss of station on examination and called a stat c-section sometime
after 4:25 a.m. for suspected uterine rupture. The expert opines this constituted a significant
delay and departure from the standard of care, stating the c-section was only called “after hours
of worsening symptoms, unrelenting maternal pain, vaginal bleeding, irregular contractions
despite Pitocin, and prolonged gaps in fetal monitoring.”
Finally, the expert opines that even once the “stat” c-section was called – which Plaintiffs
contend was as early as 4:25 a.m., based on a nurse’s “date of service” note – the physicians
failed to perform it within the timeframe required by the standard of care. The expert opines that
the “decision to incision” time for a stat c-section should be as expeditious as possible and
should never exceed 30 minutes. The expert also notes that, based on the timeframe discussed by
Dr. Ricketts-Holcomb in her own testimony, all the steps to prepare the patient, transfer her to
the OR, and complete the c-section could and should have been performed within 10-18 minutes.
Based on the earliest recorded time of 4:25 a.m., the expert opines the approximate 40-minute
timeframe to complete the c-section delivery at 5:05 a.m. was “inexcusable and a clear deviation
from good and accepted medical practice”
On proximate causation, the expert opines that these departures led to the mother’s
“catastrophic uterine rupture and the hypoxic-ischemic brain injury suffered by D.S.” Had the
physicians proceeded with a c-section from the outset, rather than attempting vaginal delivery
and augmentation with Pitocin, the expert opines that the mother would have avoided “the
excessive mechanical stress of labor on her compromised uterus” and she would never have
sustained the uterine rupture, which in turn led to prolonged fetal deprivation of oxygen.
9 of 16 [* 9] FILED: KINGS COUNTY CLERK 02/27/2026 05:31 PM INDEX NO. 501999/2023 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/27/2026
Similarly, the expert opines that an earlier c-section in the face of the mother’s signs and
symptoms of a “developing” or impending uterine rupture would have prevented the injuries.
The expert also opines that any delay between the uterine rupture, “stat” c-section call,
and c-section delivery at 5:05 a.m. was a proximate cause of the infant’s injuries, as “each
additional minute that it takes to deliver the infant is a minute that the infant is deprived of
oxygen, causing hypoxia to the brain.”
Based on evaluation of both parties’ submissions, the Court finds that clear issues of fact
remain precluding summary judgment. Although the movant’s expert has established prima facie
entitlement to summary judgment on some issues, Plaintiff’s expert addresses and rebuts each of
these opinions.
One of the issues of fact raised by Plaintiff is whether it was a departure from the
standard of care to attempt VBAC. Defendants’ expert addresses the mother’s risk factors, but
she offers an opinion that these risks did not outweigh the general benefits of vaginal delivery
over c-section, and she states that it was within the standard of care to attempt induction of labor.
However, Plaintiff’s expert offers a conflicting, well-reasoned opinion that VBAC was
contraindicated from the time of her admission, and a c-section should have been recommended
and performed.
Plaintiffs’ expert also raises issues of fact as to whether the mother exhibited signs and
symptoms as the labor progressed which required an emergency c-section, during both Dr.
Ricketts-Holcomb and Dr. Philadelphia’s shift. Plaintiff testified that she experienced abnormal
pain for an extended period of time, which was only temporarily relieved by the epidural. The
medical chart only reflects a flareup of pain prior to the epidural and after 4:00 a.m. The Court
finds Plaintiff’s expert opinions on this issue are non-speculative and supported by the mother’s
10 of 16 [* 10] FILED: KINGS COUNTY CLERK 02/27/2026 05:31 PM INDEX NO. 501999/2023 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/27/2026
testimony and the hospital record. Thus, there are issues of fact and credibility regarding her
alleged abnormal complaints of pain and the response of the attending physicians. The Court also
finds issues of fact as to the significance of the mother’s vaginal bleeding, periods of loss of
contact in the fetal heart strips, and loss of station, and whether these symptoms should have
prompted an earlier emergency c-section.
Additionally, the Court finds there remain clear issues of fact as to the timing of Dr.
Ricketts-Holcomb’s “stat” c-section order after 4:00 a.m. Defendants’ expert states that there
was a “loss of contact at 4:48 a.m.,” and there was no reason to perform a c-section before that
time. Plaintiffs argue in opposition that a 15-minute loss of contact began at 4:13 a.m. and the
fetal heart tracings were never reassuring after that point.
There are also conflicting notes in the medical chart as to exactly when Dr. Ricketts-
Holcomb observed loss of station and made the decision to proceed with an emergency c-section.
Defendant’s expert states that the decision was made at 4:48 a.m. “as soon as the fetal tracing
was lost,” and “the infant was delivered [within] 20 minutes.” However, there are other notes in
the chart indicating the mother was already in the OR and prepped for the procedure at 4:48 a.m.,
which Dr. Ricketts-Holcomb testified would take several minutes. Plaintiff’s expert opines that
the c-section was called as early as 4:25 a.m., based on a nursing note detailing multiple events
which was entered the following day. Based on the expert affirmations, testimony, and medical
records, there are questions of fact and credibility as to the exact time of the c-section call, how
much time elapsed before the infant was delivered, and whether it was timely performed in
accordance with the standard of care.
On the issue of proximate causation, Defendants’ expert opines that the uterine rupture
was an acute event which occurred late in the delivery, shortly before the c-section was called,
11 of 16 [* 11] FILED: KINGS COUNTY CLERK 02/27/2026 05:31 PM INDEX NO. 501999/2023 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/27/2026
and therefore no alleged departure from the standard of care was a proximate cause of the uterine
rupture and the infant’s resulting injuries. Plaintiffs’ expert counters that the uterine rupture
would have been avoided entirely if a c-section was called due to the mother’s high-risk
pregnancy and signs and symptoms during labor, and that the alleged delays in performing the c-
section after the event proximately caused the infant’s worsened injuries. These conflicting
opinions preclude summary judgment as a matter of law.
In sum, the Court finds there are issues of fact as to the standard of care and proximate
causation “When experts offer conflicting opinions, a credibility question is presented requiring
a jury's resolution” (Stewart v. North Shore University Hospital at Syosset, 204 AD3d 858, 860
[2d Dept 2022], citing Russell v. Garafalo, 189 A.D.3d 1100, 1102, [2d Dept. 2020]). Summary
judgment is therefore denied as to the medical malpractice claims against Dr. Ricketts-Holcomb
and Dr. Philadelphia.
Turning to the lack of informed consent claim, this is a distinct cause of action on which
the plaintiff must ultimately demonstrate:
“(1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” (Figueroa-Burgos v Bieniewicz, 135 AD3d 810, 811 [2d Dept 2016] [internal citations and quotation marks omitted]).
On the first element, the Second Department has held that:
“[w]hile the signing of a generic consent form by the plaintiff does not establish that a defendant is entitled to summary judgment, a defendant can establish entitlement to summary judgment by demonstrating that the plaintiff signed a detailed consent form 12
12 of 16 [* 12] FILED: KINGS COUNTY CLERK 02/27/2026 05:31 PM INDEX NO. 501999/2023 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/27/2026
after being apprised of alternatives and foreseeable risks” (Pirri-Logan v Pearl, 192 AD3d 1149 [2d Dept 2021] [internal citations omitted]).
Here, Defendant’s expert opines that based on the record and the physicians’ testimony, the
foreseeable risks, benefits, and alternatives to VBAC in comparison with a c-section had been
discussed with the mother prior to her signing a consent form. She specifically states that “the
risks of elective repeat C-section were discussed, along with the advantages of C-section,
including a decreased risk of uterine rupture.” Additionally, the expert opines that the mother
was properly informed of the “risks associated with labor induction agents” (Pitocin) and the
potential need for an emergency c-section, which she also consented to.
The expert opines that in her appointment prior to admission, Dr. Philadelphia
“appropriately and thoroughly counseled the plaintiff about the high-risk factors of her
pregnancy,” and that another NYCHHC physician, Dr. Grueso, “explicitly discussed the risks of
VBAC” when she was admitted to labor and delivery. The expert states that these risks “included
less than a 1% risk of uterine rupture with significant maternal and neonatal morbidity and
mortality.”
In opposition, Plaintiffs’ expert rebuts these opinions as to whether the foreseeable risks
of VBAC were disclosed to the mother prior to her signature on the consent forms. In her
deposition testimony, the mother denied that she was ever informed of the risk of uterine rupture,
and she did not recall any prior discussion of the risks of a vaginal delivery compared to a c-
section. She testified that she was told by an admitting physician that “a vaginal delivery is best
to do,” and a c-section would be performed only “in case of any complications.”
Plaintiff’s expert further addresses the statement from the movant’s expert that she was
advised of a “less than a 1% risk” of uterine rupture. Plaintiffs’ expert argues that if this small
13 of 16 [* 13] FILED: KINGS COUNTY CLERK 02/27/2026 05:31 PM INDEX NO. 501999/2023 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/27/2026
likelihood was presented to her, it was inaccurate, because the “less than 1%” figure applies only
to “healthy, low-risk VBAC candidates.” Plaintiff’s expert opines that the foreseeable risk of
uterine rupture was higher for a VBAC with advanced maternal age, uterine fibroids, gestational
hypertension, and short interpregnancy interval. The expert opines that the mother was “not fully
or adequately warned of these heighted risks” at the time of admission or at any point during her
trial of labor.
Based on the conflicting testimony and the opinions of the parties’ experts, there are
issues of fact on whether a foreseeable risk of uterine rupture and the benefits of a c-section over
VBAC were appropriately disclosed to the mother before she consented to a trial of labor.
Likewise, Plaintiffs raise issues of fact as to whether a foreseeable, increased risk of uterine
rupture from administering Pitocin was disclosed to the mother. The Court therefore finds that
issues of fact remain as to the first element of the lack of informed consent claim.
On the second element of the informed consent cause of action, Defendants’ experts offer
no opinion as to whether “a reasonably prudent patient in the same position” would still have
undergone labor induction and VBAC if she had been informed of the risks. Thus, they have not
established prima facie entitlement to summary judgment on that basis, and it remains an issue of
fact for the jury.
Finally, there remain issues of fact on proximate causation with respect to the informed
consent claim. This third element “is construed to mean that the actual procedure performed for
which there was no informed consent must have been a proximate cause of the injury”
(Figueroa-Burgos v Bieniewicz, at 811-812, quoting Trabal v Queens Surgi-Ctr., 8 AD3d 555
[2d Dept 2004]). Here, Plaintiffs have raised issues of fact that informed consent was not
14 of 16 [* 14] FILED: KINGS COUNTY CLERK 02/27/2026 05:31 PM INDEX NO. 501999/2023 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/27/2026
obtained for the VBAC and augmentation of labor with Pitocin, and that the uterine rupture and
the infant’s birth injuries were proximately caused by those treatments.
In sum, there remain triable issues of fact as to all the elements of the Plaintiffs’ informed
consent claim, and summary judgment on this cause of action must be denied.
Finally, the plaintiff mother and father assert a separate cause of action for loss of
services of their deceased infant, “loss of the love, affection, support and companionship that a
daughter ordinarily provides,” and expenses for “medical and hospital care on her behalf.”
“In New York, parents generally cannot recover for loss of consortium for their
children,” but they “may recover for loss of a child's services upon submitting proof that the
child contributed to household income or paid a part of household expenses” (S.M. v Madura,
223 AD3d 486 [1st Dept 2024]). Parents also may recover for “reasonable expenses necessarily
incurred . . . in an effort to restore the infant to health” (Gilbert v Stanton Brewery, 295 NY 270
[1946]; see also Foti v Quittel, 19 AD2d 635 [2d Dept 1963]).
Here, although there is no legally viable claim for loss of affection or society of one’s
child, the parents have a viable claim for pecuniary loss of services and medical expenses, to the
extent such damages can be proved at trial. As there remain issues of fact as to the underlying
medical malpractice claims, Defendants’ motions are also denied with respect to the mother and
father’s derivative claims for pecuniary loss of services and medical expenses (see Weiss v
Vacca, 219 AD3d 1375, 1378 [2d Dept 2023]; Powell v Prego, 59 AD3d 417, 418 [2d Dept
2009]).
Accordingly, it is hereby:
ORDERED that the part of the motion (Seq. No. 1) seeking summary judgment on
behalf of Dr. Terbancea and Dr. Ahmad is granted without opposition, and the vicarious liability
15 of 16 [* 15] FILED: KINGS COUNTY CLERK 02/27/2026 05:31 PM INDEX NO. 501999/2023 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/27/2026
claims against NYCHHC on behalf of Dr. Terbancea and Dr. Ahmad are dismissed; and it is
further
ORDERED that the summary judgment motion (Seq. No. 1) of Dr. Ricketts-Holcomb,
Dr. Philadelphia, and NYCHHC is otherwise denied; and it is further
ORDERED that the caption is amended to read:
--------------------------------------------------------------------------X NATASHA SMARTT and DEVON SMARTT, as Administrators of the Estate of D.S., Deceased, NATASHA SMARTT, Individually and DEVON SMARTT, Individually,
Plaintiffs,
LISA RICKETTS-HOLCOMB, M.D., MELISSA PHILADELPHIA, M.D. and NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (KINGS COUNTY MEDICAL CENTER),
Defendants. --------------------------------------------------------------------------X
The Clerk shall enter judgment in favor of GABRIEL TERBANCEA, M.D. and ASMA
AHMAD, M.D.
This constitutes the decision and order of this Court.
ENTER.
_______________________________ Hon. Consuelo Mallafre Melendez J.S.C.
16 of 16 [* 16]