Gray v Vogel

2024 NY Slip Op 30035(U)

January 4, 2024

Supreme Court, Kings County

Docket Number: Index No. 511364/14

Judge: Genine D. Edwards

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.
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PRES ENT: 

HON. GENJNE D. EDWARDS, 

Justice. 

At an IAS Term, Part 80 of the Supreme 

Court of the State ofNew York, held in and 

for the County of Kings, at the Courthouse, 

at Civic Center, Brooklyn, New York, on the 

4th day of January 2024. 

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ANN MARIE GRAY as Administratrix of the Estate of 

MICHAEL BRYAN, and ANN MARIE GRAY, Individually, 

- against -

SARAH VOGEL, M.O., 

Plaintiffs, 

JESSICA LAROSSA, P.A., 

STEPHEN HUGHES, M.D., and 

ALBANY MEMORIAL HOSPITAL, 

Defendants. 

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The following e-filed papers read herein: 

Notice of Motion/Cross Motion, Affirmations, 

DECISION AND ORDER 

Index No. 511364/14 

Mot. Seq. Nos. 4-7 

NYSCEF Doc No.: 

and Exhibits ........................................ 158-173; 174-192; 193-217; 228-245 

Affirmations in Opposition and Exhibits .................. 246-24 7; 248-249; 250-251; 253-256 

Reply Affirmations and Exhibits ........................ 257-260; 261; 262; 264-265 

In this action to recover damages for (among other things) medical malpractice and 

wrongful death, defendants Sarah Vogel, M.D. ("Dr. Vogel") and Jessica LaRossa, P.A. 

("PA LaRossa''), jointly, and defendants Stephen Hughes, M.D. ("Dr. Hughes") and Albany 

Memorial Hospital ("AMH") separately, move for summary judgment dismissing a11 claims 

as against each such defendant, whereas plaintiff Ann Marie Gray, individually and as the 

administratrix of the estate of her late son, Michael Bryan (collectively, "plaintiff''), crossmoves for partial summary judgment on the issue of liability as against defendants 

Dr. Hughes and AMH (motion sequence numbers 5, 4, 6, and 7, respectively). 

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Background 

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In the early afternoon of Sunday, February 10, 2013, 1 Michael Bryan (the "patient'"), 

an uninsured (or ··self-pay") dishwasher, age 25, presented to AMH's emergency room 

(""ER") with the complaint of "ankle pain and right calf pain [ and swelling] for several 

weeks" (AMH's records at 088). 2 The patient reported at triage that: (1) .. he [hadl injured 

[his right ankle] a couple of years ago .. ;

3 (2) ··he ha[d] a job where he [was] on his teet all 

the time"; (3) "[h]e's had increased pain [in his right ankle] for the past couple of days"; and 

(4) ··[h]e also ha[d] some pain in his right proximal caiflaterally"" (Id. at 087, 092) (italics 

added; capitalization omitted). The patient reported that his pain level was 10 ( on the scale 

of 1 to 10, with 10 being the highest) (Id. at 094, 096). His medical history was significant 

for asthma for which he visited AMH's ER one month prior on January 15 and for which he 

was prescribed an Albuterol inhaler by PA LaRossa (Id. at 115, 117, 119-120). 

A physical examination of the patient by Dr. Vogel. an emergency room physician 

then overseeing the triage. found that he was suffering from a ·'mild diffuse tenderness to 

palpation around the right ankle joint,'' together with a .. [m]ild tenderness on his right 

lateral calf proximally'' (Id. at 087) (italics added). An X-ray of the patient"s right ankle 

was ordered by Dr. Vogel to confirm an "acute exacerbation of an old injury of his right 

1 All references are to calendar year 2013, unless otherwise indicated. 

2 The patient's complaint was alternatively described as "increasing pain for the past several weeks"'; "pain in the knee 

and his ankle[,] and ... pain in his calf'; and "pain when he walks on [his right] leg"' (AMH's records at page 088) 

(emphasis added) . 

.1 Approximately three years prior. on April 16, 20 l 0, the patient presented to AMH, complaining of a right-ankle injury 

and explaining that he "slipped and fell down l O [steps of] stairs this [morning;] denie[d] loss of consciousness or other 

injury" (AMH's records at 028 [abbreviations spelled out]). No fracture or dislocation was found on the X-ray 

examination (id. at 035). On discharge later the same day (April 16, 2010), the patient was given a right-ankle brace, 

crutches, and two tablets of(together with a prescription for) Hydrocodone/APAP 5/325 (id. at 027, 030, and 031). 

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ankle'· (Id. at 087). This was consistent with the triage nurse's prior assessment of the 

patient as suffering from an "ankle injury·· or ·'ankle sprain" (Id. at 080 and 084 ). The 

right-ankle X-ray found --no evidence of acute fracture. dislocation or focal soft tissue 

swelling'· (Id. at 089). 

After the X-ray was performed, the patient was transferred to the low risk, "Fast 

Track" section of the ER, which was then overseen by PA LaRossa. A physical 

examination ofthe patient by PA LaRossa was significant for '"[t]enderness to palpation 

over the anterior [right] ankle" and was"+ [positive for] [right] calf tenderness" (AMH's 

records at 089). Following her examination of the patient, PA LaRossa ordered an 

ultrasound study of the patient's right leg to rule out DVT (Id. at 099). 

Later, on the afternoon of February 10th , the patient underwent a diagnostic 

ultrasound study of his right leg starting at his right groin and ending at his right ankle, with 

the relevant medical history of"'[ right] leg swelling .. (the "sonogram ··) (AMH' s records at 

076 and 102). The sonogram was performed by nonparty Registered Diagnostic Medical 

Sonographer/Registered Vascular Technologist Justine Levesque. 4 The resulting sonogram 

films (as static images) were interpreted by radiologist Dr. Hughes. 5 Dr. Hughes's 

ultrasonographic findings were that: (1) the patient's ·'deep venous system of [his] right leg 

was visualized from the level of the common femoral vein ["CFV"] to the pop Ii teal vein'":6 

(2) '·[t]he vessels demonstrated anechoic [echo-free] lumen and normal compressibility, 

4 See Affidavit of Justine Levesque, dated June 17, 2022 (NYSCEF Doc No. 104), -,i 4. 

5 See Dr. Hughes' deposition tr at page 22, lines 2---4. 

r. The common femoral vein (or "CFV" for short) is anatomically located at the groin level (see Dr. Hughes' deposition tr at 

page 27, lines I 0-11 ). 

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with no evidence of [DVTJ'; and (3) "[d]uplex evaluation demonstrates intact venous flow" 

(Id. at 102) (italics added). Dr. Hughes' impression ofthe sonogram as a diagnostic 

radiologist was: "'[n}o sonographic evidence of DVT, right leg,from the level of the [CFVJ 

through the popliteal trifurcation" (Id. at 102) (italics added). 

Following Dr. Hughes' negative interpretation of the sonogram, the patient received, 

in the ER, an ankle splint, an ice/cold pack, a set of crutches, and a prescription for threetimes-daily Ibuprofen (AMH's records at 083, 085, 089, 091, and 103). In the late 

afternoon of the same day, he was sent home on a "routine discharge·· in "stable condition·• 

with the written instructions of "Rest, Ice, Compress, Elevate, Us[e] Crutches. Joint Pain" 

(Id. at 086, 090, and 09 I). The patient was orally advised (according to PA LaRossa's 

note) "to follow up with orthopedics for [a] further evaluation" or to return to AMH's 

emergency room (id. at 089). 7 He did not follow up either with orthopedics nor a primary 

care physician because he did not have health insurance. 8 Nor did he return to AMH's 

emergency room. 

Nineteen days later, on the evening of March 1 si, the patient, while relaxing at a 

friend's home, suffered a series of cardiac arrests known as "pulseless electrical activity" 

("PEA'"). Prior to experiencing those arrests, the patient "had been complaining [for] 

approximately two weeks of respiratory symptoms, cough. and difficulty breathing," and on 

February 28th (the day before the PEAs), "he [had] developed right leg pain, which 

7 Whereas the patient's medical chart included a referral to "Northeast Orthopedics" for the "First Available 

Appoint[ment]" (at page 099). it stated elsewhere that the patient was to follow up with his primary care physician, 

rather than with an orthopedist (at page 097). 

8 See Shaquanna Woods' deposition tr at page 22, lines 2-5; page 24, line 8 to 18; page 25, lines 7-19. 

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continued overnight and worsened throughout the course of the day."9 Following the 

PEAs, he was immediately taken to nonparty Albany Medical Center Hospital where he was 

diagnosed with pulmonary embolism ( .. PE"). 10 He died there on March 12th• leaving his 

mother and brother as the surviving next of kin. The immediate cause of his death was the 

"anoxic brain injury'' due to (or as a consequence of) the ·'pulmonary embolus [i.e .. the 

PE]."11 

On December 2. 2014, the patient's mother (acting individually and as the 

administratrix of his estate) commenced the instant action asserting claims sounding in 

medical malpractice, wrongful death, loss of services, vicarious liability. and lack of 

informed consent as against all defendants, and an additional, separate cause of action for 

negligent retention and credentialing as against AMH. Each defendant joined issue. After 

discovery was completed. an amended note of issue/certificate of readiness was filed on 

November 4. 2022. Thereafter, the time to move for summary judgment was extended via 

so-ordered stipulation. dated December 13. 2022 (Graham. J.) (NYSCEF Doc No. 181 ). 

The instant motions and cross-motion were each timely served in accordance with the terms 

of the aforementioned stipulation. On September 22, 2023. the motions and cross-motion 

were deemed fullv submitted. with the Court reserving decision. ~ , ..., 

Dismissal of certain groups of plaintiffs claims was unopposed. First, plaintiff 

failed to oppose the entirety of the joint motion of Dr. Vogel and PA LaRossa for dismissal 

9 See Albany Medical Center Hospital, March I'' ER physician's note (NYSCEF Doc No. 50). 

10 With the exception of the March 1'1 ER physician's note and the March 12th Certificate of Death, the patient's chart 

with Albany Medical Center Hospital is not part of the court record. Albany Medical Center Hospital is not the same 

as AMH. See Lasherv. Albany Mem. Hosp., 161 A.D.3d 1326, 77 N.Y.S.3d 544 (3d Dept., 2018). 

11 See Certificate of Death (NYCEF Doc No. 243). 

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of all her claims as against them. Second, plaintiff failed to oppose the branches of 

Dr. Hughes' and AMH' s separate motions for dismissal of her infonned-consent claim. 

Third and finally, plaintiff failed to oppose the branch of AMH's motion for dismissal of her 

claim for negligent retention and credentialing as against AMH. Accordingly. all such 

claims are dismissed without further discussion. as more fully set forth in the decretal 

paragraphs below. The balance of this Decision and Order addresses the merits of 

plaintiffs remaining claims as against Dr. Hughes and AMH, which are comprised of: 

( 1) the medical malpractice, wrongful death, and loss of services claims as against 

Dr. Hughes, as predicated on his alleged failure to properly read and interpret the patient's 

sonogram, 12 and (2) the vicarious liability claim as against AMI-I for such alleged failure. 

Discussion 

Dr. Hughes (and, by extension, AMH) established. prima facie, that he discharged his 

duty to the patient in accordance with accepted practice for radiologists. See Mann v. 

Okere. 195 A.D.3d 910, 150 N.Y.S.3d 306 (2d Dept., 2021): Meade v. Yland, 140 A.D.3d 

931, 33 N.Y.S.3d 444 (2d Dept.. 2016). Jonathan Luchs, M.D .. the radiology expert for Dr. 

Hughes (as well as for AMH 13 ) (the "radiology defense expert"), concluded (in ,i,i 16 and 

22-23 of his opening aflirmation at NYSCEF Doc No. 173) that: (1) Dr. Hughes' 

12 Plaintiff effectively abandoned the remaining predicates for her medical malpractice. wrongful death, and loss of 

services c ]aims as against Dr. Hughes (and vicariously as against AM H), by failing to address them in the affinnation of 

her expert radiologist. The remaining predicates consisted of the alleged failure to timely and properly pertorm: (I) a 

sonogram of the patient's veins below his right knee; (2) a VQ scan of his veins below his right knee; (3) a CT 

angiogram; and (4) an MRI. See Garbawski v. Hudson Val. Hosp. Ctr., 85 A.D.3d 724, 924 N.Y.S.2d 567 (2d Dept., 

2011). 

13 See AMH's Affinnation in Support, dated May 2, 2023 (NYSCEF Doc No. 194). 15 ("[AMH] hereby adopts and 

incorporates by reference the opinions set forth in the affinnations of Board-Certified radiologist Dr. Jonathan Luchs"). 

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interpretation of the sonogram was in conformity with accepted practices; (2) the ""[i]maging 

of the lower [right] calf was demonstrated on the [sonogram] and did not show any clots"; 

and (3) he agreed with Dr. Hughes' opinion of "[n]o sonographic evidence of DVT, right 

leg, from the level of the [CFVJ' (italics added). 14 The radiology defense expert further 

opined (in 128 of his opening affirmation) that ··the progression of [the patient's] [PE] and 

his subsequent death on March 12 ... [could not] be attributed in any way to the care 

provided by Dr. Hughes on February 10." 

(1) 

In opposition to Dr. Hughes' prima facie showing, plaintiff raised triable issues of 

fact- by way of the affirmations of radiologist Jordan Haber. M.D., at NYSCEF Doc No. 

242 (the "'plaintiffs radiology expert"), and her emergency-medicine physician David Mark 

Nidort: M.D., at NYSCEF Doc No. 244 (the ··plaintiffs emergency-physician expert) - as 

to whether Dr. Hughes departed from good and accepted radiological practice in failing to 

properly read and interpret the patient's sonogram, and whether such departure caused the 

14 The aforecited italicized language represented only a portion of Dr. Hughes' impression of"{n]o sonographic 

evidence of DVT, right leg, from the level of the {C FV] through the popliteal trifurcation." Significantly. however, the 

radiology defense expert did not opine in ,i,i 22-23 of his opening affirmation that he agreed with the entirety of 

Dr. Hughes' impression which, in addition to the italicized language above, included the underlined language which the 

radiology defense expert omitted in his opening affirmation. Rather. the radiology defense expert finessed the 

remainder of Dr. Hughes· impression by focusing on the vein compressibility which (as explained more fully in the text 

below) was only one, but not the only, criterion for ruling out the presence of a clot. See Radiology Defense Expert's 

Opening Affinnation. ,i 23 ('"All relevant portions of the leg, including the lower extremity[,} [were] compressed [with 

the probe] during the ultrasound to identify an acute clot. Each image showed a clear view of the ... vein before and 

after rnmpression [with the probe]. In each of these views[,] the vein flattened out and demonstrated full compression 

of the vein indicating no clot" [italics added]). 

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patient's PE and his subsequent death. See Ivey v. Mbaidjol, 202 A.D.3d 1070, 163 

N.Y.S.3d 589 (2d Dept.. 2022). It is hornbook law that .. [s]ummary judgment is not 

appropriate in a medical malpractice action where the parties adduce conflicting medical 

expert opinions ... [because] [s]uch credibility issues can only be resolved by a jury." 

Feinberg v. Feit, 23 A.D.3d 517, 806 N.Y.S.2d 661 (2d Dept., 2005). 

On the subject of proximate cause, her emergency-physician expert elaborated (in 

,r 11 of his affirmation) that: (1) "[t]he available treatment for a DVT ... include[d] 

anticoagulation therapy, [the placement of] a [G]reenfield filter, or an embolectomy"; 

(2) ''[h]ad the diagnosis been made on February 10 ... , the [patient] would have been 

treated using one or more of the above[-]reference[d] methods": and (3) with timely 

treatment. the patient ·'would not have suffered [PE], ... an anoxic brain injury, and ... 

death ... that occurred as a result of the [missed] DVT." To raise a triable issue of fact. 

"a plaintiff need not establish that. but for a defendant doctor's failure to diagnose, the 

patient ,vould have been cured." Neyman v. Doshi Diagnostic Imaging Serv., P. C., 

153 A.D.3d 538, 59 N.Y.S.3d 456 (2d Dept., 2017). ;,Whether a diagnostic delay affected 

a patient's prognosis is typically an issue that should be presented to a jury:· Id. (internal 

quotation marks omitted). 

Contrary to AMH's contention, the patient's non-compliance with the discharge 

instructions in failing to follow up with an orthopedist or a primary care physician ( or to 

return to the ER) did not constitute an intervening cause that, as a matter of law, severed the 

causal nexus between the missed DVT and the patient's injuries/death. "When a question 

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of proximate cause involves an intervening act, liability turns upon whether the intervening 

act is a normal or foreseeable consequence of the situation created by the defendant's 

negligence."' Hain v. Jamison, 28 N.Y.3d 524, 46 N.Y.S.3d 502 (2016) (internal quotation 

marks and italics omitted). Nothing in the radiology defense expert's affirmations (at 

NYSCEF Doc Nos. 173 and 256) supported (much less established as a matter of law) that 

the patient's failure to follow up was "extraordinary under the circumstances, not 

foreseeable in the normal course of events, or independent of or far removed from 

[Dr. Hughes' l conduct. that it [might] possibly break the causal nexus." Romanelli v. 

Jones, 179 A.DJd 851, 117 N.Y.SJd 90 (2d Dept., 2020) (internal quotation marks 

omitted). 

(2) 

The radiology defense expert's contention, in his separate affirmation in opposition 

to plaintiffs motion (at NYSCEF Doc No. 256). that the plaintiffs radiology expert relied 

(in essence) on falsehoods and manufactured evidence in rendering an opinion, was 

unsupportable, both medically and legally. The plaintiffs radiology expert's opinions were 

grounded in the medical evidence on both the macro and micro levels. 

On the macro level of analysis of the medical evidence. the plaintiffs expert 

radiologist opined (in ,r,r 8 and 15 of his affirmation) that: 

(1) The sonogram ··demonstrate[d] the presence of a clot in the patient's right [CFV], 

which was missed by [Dr.] Hughes"; 

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(2) .. [Dr.] Hughes should have diagnosed the DVT on the patient"s ... sonogram, and 

that [his] failure to diagnose the DVT [was] a violation of the standard of care''; and 

(3) "Had [Dr.] Hughes made the diagnosis of a DVT on February 10 .... a number 

of procedures were available to treat the patient's condition that would have prevented the 

DVT from dislodging, ... traveling to the patient's lungs, and causing the [PE], the patient's 

anoxia and [ PEA episodes] on March 1 ... and death on March 12." 

Turning to the micro level of analysis of the medical evidence, the plaintiffs expert 

radiologist further opined (in ,i,i 8-13 of his affirmation) that: 

(1) The DVT was present in the patient's right leg, and could be seen (or visualized), 

"on at least three ... separate sonographic images identified as: 2/29, 24/2[9] and 25/29"; 

(2) "Image 2 of 29 [ showed] ... that [ the lumen of] the [patient's] right [ CFV] did 

not compress [with the probe] during the [sonographic] examination''; 

(3) Images of the right CFV ··demonstrate[ ct] the presence of echogenic material 

which, in fact. represent[ ed] a DVT (blood clot) in the patient[']s right [leg]"; and 

(4) The ··DVT [was] also present on [each of] additional [I]mages 24/29 and 25/29." 

Moreover, the plaintifTs expert radiologist (in ,i~ 10-12 of his affirmation) proffered 

a medical illustration as a representation of a visible clot (i.e .. the patient"s right-sided DVT) 

on each of the Images 2/29, 24/29, and 25/29. See Medical Illustration, pages 1-2, at 

NYSCEF Doc No. 235. 

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The radiology defense expert's disagreement with the plaintiff's expert radiologist on 

the interpretation of the sonogram films was at odds with several radiological principles. 

First, a blood clot could be both complete and occlusive or. alternatively. partial and 

obstructive; meaning that the patient could still have had a blood clot in the lumen of his 

right CFV ( or in the lumen of any other deep vein in his right leg), notwithstanding the 

presence of blood flow in his right leg. 15 Second. the echogenicity of the patient's deep 

veins in his right leg must be separately (and ultrasonographically) assessed, in addition to 

(and aside from) the blood flow therein. 16 Third. the ultrasound technologist's compression 

with her probe 17 of the patient's deep veins in his right leg was not equivalent (in terms of 

the assessment of the patient's blood flow) to her augmentation of his blood flow by her 

squeezing of his right calf. 

(4) 

Finally and fundamentally (and apart from the foregoing), the radiology defense 

expert's disagreement ,vith plaintiffs expert radiologist on the sonogram interpretation 

15 See Dr. Hughes' deposition tr at page 47, lines 3-8 (testifying that clots or '"thrombosis" can vary in size). 

16 See Dr. Hughes' deposition tr at page 22, line 14 to page 23, line 3 ("There are different components to the Doppler 

ultrasound exam. . . . The transducer is placed over the blood vessels and those images are displayed in black and 

white and then they [the performing technologist] physically interrogate the blood vessel, so they look at it and they see 

if they can compress it, And then . .. the Doppler portion of the examination is actuallr where you use the sound 

waves to look at the hloodjlow and that's in L'Oior.... In the first portion[,] you'd see ... materials. some echo[e]s. 

Generally the inside ofa blood vessel is black and there would be some echo[e]s inside ... And then the blood vessel 

itself is not compressible. the vein cannot be compressed because there is something occupying the blood vessel."); 

page 42, lines 2-3 ("[W]hen you 're using the Doppler, you're literally listening to the blood flow.") (italics added in 

each instance). 

17 See Dr. Hughes' deposition tr at page n, line 19; page 43, line 3; page 50, line 4. 

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presented an issue of fact for the jury to resolve. As Dr. Hughes noted (at page 23, line 18 

of his deposition), "[i]t ... takes a skilled person to see [the abnormalities on the 

sonogram].'' It was not the Court's function on summary judgment to interpret 

ultrasonographic images. particularly where (as more fully set forth in the margin), the 

parties' respective experts disagreed as to whether every image on the sonogram was 

properly taken. 18 See Ivey v. Mbaidjol, 202 A.D.3d 1070. 163 N.Y.S.3d 589 (2d Dept., 

2022); Matos v. Khan, 119 A.D.3d 909, 991 N. Y .S.2d 83 (2d Dept., 2014 ). 19 

"Additionally, because the cause[s] of action alleging wrongful death [and loss of 

services] [were] premised on the defendant's alleged medical malpractice, the same 

conclusions apply as to [such] cause[s] of action." Matos v. Khan, 119 A.D.3d 909,991 

N.Y.S.2d 83 (2d Dept., 2014). 

Next, by establishing the existence of triable issues of fact regarding the liability of 

Dr. Hughes (as predicated on his alleged failure to properly read and interpret the patient's 

sonogram ), plaintiff also raised triable issues of fact regarding the vicarious liability of 

AMH in that regard. See Vichlenski v. Schwartz, 20 l A.D.3d 773. 161 N.Y.S.3d 293 

(2d Dept.. 2022); Goffredo v. St. Luke's Cornwall Hosp., 194 A.D.3d 699. 143 N.Y.S.3d 

597 (2d Dept., 2021 ). Finally. the existence of triable issues of fact as to Dr. Hughes' 

18 Whereas the radiology defense expert opined (in ,r 5 of his affirmation in opposition) that Image 25/29 was "a poor 

image of the Doppler being applied at a bad angle" and that "the angle of the probe was improper," Dr. Hughes testified 

(at page 25, lines 15-16 of his deposition) that .. the images were all done very weir (italics added). 

19 See also Carrollv. Nia?,ara Falls Mem. Med Ctr., 218 A.D.3d 1373, 193 N.Y.S.3d 579 (4th Dept., 2023) ("Contrary 

to the Perry defendants· contention, we conclude that the affidavit of plaintiffs expert raised triable issues of fact with 

respect to plaintiffs theory that Dr. Perry's failure to identify a DVT on the ultrasound constituted medical malpractice. 

In contrast to the opinion <>([defendant} Dr. PenJ' that the ultrasound images showed no evidence ofa DVT. plaint[f]'s 

expert opined that the hlack lentiform area on at least one image showed 'a classic sign of DVT!blood clot. · Thus. the 

affidavit of'plaintiffs expert squarely comradicted Dr. Perry ·s affidavit and created a classic battle of the experts on 

the element of deviation that is properly leji to a jury for resollllion.") (italics added). 

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alleged failure to properly read and interpret the patient's sonogram precluded the grant of 

partial summary judgment on the issue of liability in plaintiffs favor. 

Conclusion 

Accordingly, it is 

ORDERED that in motion Seq. No. 5, Dr. Vogel and PA LaRossa's joint motion for 

summary judgment dismissing all claims as against them is granted without opposition; the 

complaint is dismissed as against Dr. Vogel and PA LaRossa without costs or 

disbursements; and the action is severed and continued as against the remaining defendants, 

Dr. Hughes and AMH, and it is further 

ORDERED that in motion Seq. No. 4, Dr. Hughes' motion is granted to the extent 

that: ( l) plaintiff's medical malpractice. wrongful death, and loss of services claims, 

insofar as not predicated, in each instance, on his alleged failure to properly read and 

interpret the patient's sonogram, are dismissed as against him; and (2) her informed-consent 

claim is dismissed as against him; and the remainder of his motion is denied, and it is further 

ORDERED that in motion Seq. No. 6, AMH"s motion is granted to the extent that: 

(1) plaintiff's vicarious liability claim. as predicated on the alleged acts/omissions of 

Dr. Vogel and Pa LaRossa, are dismissed as against it; (2) her vicarious liability claim, 

insofar as not predicated on Dr. Hughes' alleged failure to properly read and interpret the 

patient's sonogram, is dismissed as against it; (3) her informed-consent claim is dismissed 

as against it; and ( 4) her negligent retention and credentialing claim is dismissed as against 

it; and the remainder of its motion is denied. and it is further 

ORDERED that in motion Seq. No. 7. plaintiffs motion for partial summary 

judgment on the issue of liability as against Dr. Hughes and AMH is denied in its entirety, 

and it is further 

ORDERED that, for the avoidance of doubt, the action shall proceed on plaintiff's 

medical malpractice, wrongful death, and loss of services claims as against Dr. Hughes, and 

13 

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[FILED: KINGS COUNTY CLERK 01/04/2024 04:26 P~ 

NYSCEF DOC. NO. 266 

INDEX NO. 511364/2014 

RECEIVED NYSCEF: 01/04/2024 

on her vicarious liability claim as against AMH, insofar as predicated, in each instance, on 

Dr. Hughes' alleged failure to properly read and interpret the patient's sonogram. and it is 

further 

ORDERED that to reflect the dismissal of Dr. Vogel and PA LaRossa from this 

action, the caption is amended to read as follows: 

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X 

ANN MARIE GRAY as Administratrix of the Estate of 

MICHAEL BRYAN, and ANN MARIE GRAY, Individually, 

Plaintiffs, 

- against -

STEPHEN HUGHES, M.D., and 

ALBANY MEMORIAL HOSPITAL, 

Defendants. 

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X 

and it is further 

Index No. 511364/14 

ORDERED that plaintiffs counsel is directed to electronically serve a copy of this 

Decision and Order with notice of entry on defendants' respective counsel and to 

electronically file an affidavit of service with the Kings County Clerk. 

This constitutes the Decision and Order of the Court. 

14 

Genine D. Edwards 

J. S. C. 

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