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.

### [FILED: KINGS COUNTY CLERK 01/04/2024 04:26 P~ NYSCEF DOC. NO. 266 INDEX NO. 511364/2014 RECEIVED NYSCEF: 01/04/2024

PRES ENT: HON. GENJNE D. EDWARDS, Justice. At an IAS Term, Part 80 ofthe Supreme Court ofthe State ofNew York, held in and for the County ofKings, at the Courthouse, at Civic Center, Brooklyn, New York, onthe 4th day ofJanuary 2024.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X ANN MARIE GRAY as Administratrix ofthe Estate of MICHAEL BRYAN, and ANNMARIEGRAY, Individually,

- against
- SARAH VOGEL, M.O., 

### Plaintiffs,

JESSICA LAROSSA, P.A., STEPHEN HUGHES, M.D., and ALBANY MEMORIAL HOSPITAL, Defendants.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X The following e-filed papers read herein: Notice ofMotion/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 ..................246-247; 248-249; 250-251; 253-256 Reply Affirmations and Exhibits ........................257-260; 261; 262; 264-265


### In this action torecover damages for (among otherthings) medical malpractice and wrongful death, defendants Sarah Vogel, M.D. ("Dr. Vogel") andJessicaLaRossa, P.A. ("PA LaRossa''),jointly, and defendants Stephen Hughes, M.D. ("Dr. Hughes") and Albany Memorial Hospital ("AMH") separately, move for summaryjudgmentdismissing a11 claims
as against each such defendant, whereasplaintiffAnnMarie Gray, individually and as the administratrix ofthe estate ofher late son, Michael Bryan (collectively, "plaintiff''), crossmoves for partial summaryjudgmenton the issue ofliability as against defendants Dr. Hughes and AMH (motion sequence numbers 5, 4, 6, and 7, respectively).

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In the early afternoon ofSunday, 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"anklepain and right calfpain [and swelling] for several weeks" (AMH's records at 088).2 The patientreported at triage that: (1)
..he [hadl injured [his right ankle] a couple ofyears ago..;3 (2) ··heha[d] ajobwherehe [was] on his teet all the time"; (3) "[h]e's had increased pain [in his 

### rightankle] for the past couple ofdays"; and (4) ··[h]e also ha[d] some pain in his 

### right proximal caiflaterally"" 

### (Id. at 087, 092) (italics added; capitalization omitted). The patientreported that his pain level was 10 (on the scale of 1to 10, with 10 being the highest) 

### (Id. at 094, 096). His medical history was significant for asthma for which he visited AMH's ERone month prior on January 15 and for which he was prescribed an Albuterol inhalerby PA LaRossa (Id. at 115, 117, 119-120). A physical examination ofthe patient by Dr. Vogel. an emergency room physician then overseeing the triage. found that he was suffering from a ·'mild diffuse tendernessto palpation around the 

### right anklejoint,''together with a ..[m]ild tenderness onhis 

### right lateral 

### calf proximally'' (Id. at 087) (italics added). An X-ray ofthe patient"s right ankle was ordered by Dr. Vogel to confirm an "acute exacerbation ofan old injury ofhis right

1 All references are to calendaryear 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, 20l0, the patientpresented to AMH, complaining ofa right-ankle injury and explaining that he "slipped and fell down lO[steps of] stairs this [morning;] denie[d] loss ofconsciousness 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(togetherwith a prescription for) Hydrocodone/APAP 5/325 (id. at 027, 030, and 031). 2

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### ankle'· (Id. 

### at 087). This was consistentwith the triage nurse'sprior assessment ofthe patient as suffering from an "ankle injury·· or ·'ankle sprain" (Id. 

### at 080 and 084). The right-ankle X-ray found --no evidence ofacute fracture. dislocation or focal soft tissue swelling'· (Id. 

### at 089). Afterthe X-ray was performed, the patient was transferred to the low risk, "Fast Track" section ofthe ER, which was then overseen by PA LaRossa. A physical examination ofthepatient by PA LaRossa was significant for '"[t]enderness to palpation overthe anterior [right] ankle" and was"+ [positive for] [right] calftenderness" (AMH's records at 089). Followingherexamination ofthe patient, PA LaRossa ordered an ultrasound study ofthe patient's right leg to rule out DVT (Id. 

### at 099). Later, on the afternoon ofFebruary 10th, 

### the patient underwent a diagnostic ultrasound study ofhis 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 

### Theresulting sonogram films (as static images) were interpreted by 

### radiologist Dr. Hughes. 5 

### Dr. Hughes's ultrasonographicfindings 

### werethat: (1) 

### the patient's ·'deep venous system of[his] right leg was visualized from the level ofthe common femoral vein ["CFV"] to the pop

### Iiteal vein'": 6 

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

4 See Affidavit ofJustine 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 I0-11). 

### 3

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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 thepoplitealtrifurcation" (Id. at 102) (italics added). Following Dr. Hughes' negative interpretation ofthe sonogram, the patientreceived, in the ER, an ankle splint, an ice/coldpack, a set ofcrutches, and a prescription for threetimes-daily Ibuprofen (AMH'srecords at 083, 085, 089, 091, and 103). In the late afternoon ofthe 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 09I). The patient was orally advised (according to PALaRossa's note) "to follow up with orthopedics for [a] further evaluation" orto return to AMH's emergency room (id. 

### at 089). 7 

### He did not follow up eitherwith orthopedics nor a primary care physician because he did not have health insurance. 8 

### Nordid he return to AMH's emergency room. Nineteen days later, on the evening ofMarch 1 

### si, the patient, while relaxing at a friend's home, suffered a series ofcardiac arrests known as "pulseless electrical activity" ("PEA'"). Priorto experiencing those arrests, thepatient "hadbeen complaining [for] approximately two weeks ofrespiratory 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 "FirstAvailable Appoint[ment]" (at page 099). it stated elsewhere thatthe 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 8to 18; page 25, lines 7-19. 4

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### continued overnight and worsened throughout the course ofthe day."9 

### Following the PEAs, he was immediately taken to nonparty Albany Medical CenterHospital where he was diagnosed with pulmonary embolism (..PE"). 10 

### He died there on March 12th• 

### leaving his mother and brother as the surviving next ofkin. The immediate cause ofhis death was the "anoxic brain injury'' due to (or as a consequence of) the ·'pulmonary embolus [i.e
.. 

### the PE]."11On December 2. 

### 2014, the patient'smother (acting individually and as the administratrix ofhis estate) commenced the instant action asserting claims sounding in medical malpractice, wrongful death, loss ofservices, vicarious liability. and lack of informed consent as against all defendants, and an additional, separate cause ofaction for negligent retention and credentialing as againstAMH. Each defendantjoined issue. After discovery was completed. an amended note ofissue/certificate ofreadiness was filed on November

### 4. 2022. Thereafter, the time to move for summaryjudgmentwas extended via so-ordered stipulation. dated December 13. 

### 2022 (Graham. J.) 

### (NYSCEF Doc No. 181). 

### The instant motions and cross-motion were eachtimely served in accordance with the terms ofthe aforementioned stipulation. On September 22, 2023. the motions and cross-motion were deemed fullv submitted. with the Courtreserving decision.**~** , ..., 

### Dismissal ofcertain groups ofplaintiffs claims was unopposed. First, plaintiff failed to oppose the entirety ofthejoint motion ofDr. Vogel andPALaRossa for dismissal

9 See Albany Medical Center Hospital, March I'' ER physician's note (NYSCEF Doc No. 50). 10 With the exception ofthe March 1'1ER physician's note and the March 12th Certificate ofDeath, the patient'schart with Albany Medical Center Hospital is not part ofthe court record. Albany Medical Center Hospital is not the same as AMH. See Lasherv. AlbanyMem. Hosp., 161 A.D.3d 1326, 77 N.Y.S.3d 544 (3d Dept., 2018). 11 See Certificate ofDeath (NYCEF Doc No. 243). 5

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### ofall her claims as against them. Second, plaintifffailed to oppose the branches of Dr. Hughes' and AMH's separate motions for dismissal ofher infonned-consent claim. Third and finally, plaintifffailed to oppose the branch ofAMH's motion for dismissal ofher 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 ofthis Decision and Order addresses the merits of plaintiffsremaining claims as against Dr. Hughes and AMH, which are comprised of: (1) the medical malpractice, wrongful death, and loss ofservices 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 ofhis opening aflirmation at NYSCEF Doc No. 173) that: (1) Dr. Hughes'

12 Plaintiffeffectively abandoned the remaining predicates for her medical malpractice. wrongful death, and loss of services c]aims as against Dr. Hughes (and vicariously as against AMH), by failing to address them in the affinnation of her expert radiologist. The remaining predicates consisted ofthe alleged failure to timely and properly pertorm: (I) a sonogram ofthe patient's veins below his right knee; (2) a VQ scan ofhis 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 ofBoard-Certified radiologist Dr. Jonathan Luchs"). 6

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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 interpretation ofthe sonogram was in conformity with accepted practices; (2) the ""[i]maging ofthe lower [right] calfwas 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 ofhis 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 providedby Dr. Hughes on February 

### 10."

(1) In opposition to Dr. Hughes' prima facie showing, plaintiffraised triable issues of fact- by way ofthe affirmations ofradiologistJordanHaber. M.D., at NYSCEF Doc No. 242 (the "'plaintiffs radiology expert"), andheremergency-medicinephysician David Mark Nidort: M.D., at NYSCEF Doc No. 244 (the ··plaintiffs emergency-physician expert)
- as towhether Dr. Hughes departed from good and acceptedradiological practice in failing to properly read and interpret the patient's sonogram, and whether such departure causedthe

14 The aforecited italicized language represented only a portion ofDr. Hughes' impression of"{n]osonographic evidence of DVT, right leg,from the level of the {CFV]through the popliteal trifurcation." Significantly. however, the radiology defense expert did not opine in ,i,i 22-23 ofhis 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 ofDr. 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 ofa clot. See Radiology Defense Expert's Opening Affinnation. ,i 23 ('"All relevant portions ofthe leg, including the lower extremity[,} [were] compressed [with the probe] during the ultrasound to identify an acute clot. Each image showed a clearview ofthe ... vein before and after rnmpression [with the probe]. In each ofthese views[,] the vein flattened out and demonstrated full compression ofthe vein indicating no clot" [italics added]). 7

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### P~ NYSCEF DOC. NO. 266 INDEX NO. 511364/2014 RECEIVED NYSCEF: 01/04/2024 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]ummaryjudgment is not appropriate in a medical malpractice action wherethe parties adduce conflicting medical expert opinions... [because] [s]uch credibility issues can only be resolved by ajury." 

### Feinberg v. Feit, 23 A.D.3d 517, 806 N.Y.S.2d 661 (2d Dept., 2005). On the subject ofproximate cause, her emergency-physician expert elaborated (in 

## ,r 11 ofhis 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]adthe diagnosis been made on February 10 ... ,the [patient] would have been treated using one or more ofthe 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 ofthe [missed] DVT." Toraise a triable issue offact. "aplaintiffneed not establish that. butfor a defendant doctor's failure to diagnose, the patient ,vould have been cured." 

### Neyman v. DoshiDiagnosticImagingServ., 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 ajury:· Id. (internal quotation marks omitted). Contrary to AMH's contention, thepatient'snon-compliance withthe discharge instructions in failing to follow upwith an orthopedist ora primary care physician (orto return to the ER) did not constitute an intervening cause that, as a matter oflaw, severed the causal nexus between the missed DVT and the patient's injuries/death. "Whena question 8

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### ofproximate cause involves an intervening act, liability turns upon whetherthe intervening act is a normal or foreseeable consequence ofthe 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 oflaw) that the patient's failure to follow up was "extraordinary under the circumstances, not foreseeable in the normal course ofevents, orindependent ofor far removed from [Dr. Hughes'

## lconduct. 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 onboth the 

### macro and 

### micro levels. On the 

### macro level ofanalysis ofthe medical evidence. the plaintiffs expert radiologist opined (in

## ,r,r 8 and 15 ofhis affirmation) that: (1) 

### The sonogram ··demonstrate[d] the presence ofa clot in the patient'sright [CFV], which was missed by 

### [Dr.] Hughes";
9

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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 (2) ..[Dr.] Hughes should have diagnosedthe DVT on the patient"s ... sonogram, and that [his] failure to diagnose the DVT [was] a violation ofthe standard ofcare''; and (3) "Had [Dr.] Hughes made the diagnosis ofa DVT on February 10 .... a number ofprocedures were availabletotreatthe patient's condition that would have preventedthe DVT from dislodging, ... traveling to the patient's lungs, and causingthe [PE], the patient's anoxia and [

### PEA episodes] on March 

### 1 ... and death on March 

### 12." Turning to the 

### micro level ofanalysis ofthe medical evidence, the plaintiffs expert radiologist further opined (in 

### ,i,i 8-13 ofhis affirmation) that: (1) The DVTwas present in the patient's right leg, and couldbe seen (orvisualized), "on at least three ... separate sonographic images identified as: 2/29, 24/2[9] and 25/29"; (2) "Image 2 of29 [showed] ... that [the lumen of] the [patient's] right [CFV] did not compress [with the probe] duringthe [sonographic] examination''; (3) Images ofthe right CFV ··demonstrate[

### ct] the presence ofechogenic material which, in fact. represent[ed] a DVT (blood clot) inthe 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 ofhis affirmation) proffered
a medical illustration as a representation ofa visible clot 

### (i.e.. the patient"s right-sided DVT)
on each ofthe 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 ofthe 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 patientcould still have had a blood clot in the lumen ofhis right CFV (or in the lumen ofany otherdeep vein in his right leg), notwithstanding the presence ofblood flow in his right leg. 15 

### Second. the echogenicity ofthe 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 

### ofthe patient's deep veins in his right leg was not equivalent (in terms of the assessment ofthe patient'sblood flow) to her

### augmentation ofhis blood flow by her squeezing ofhis right calf. (4) 

### Finally and fundamentally (and apart from the foregoing), the radiology defense expert's disagreement ,vith plaintiffs expert radiologist onthe 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 overthe blood vessels and those images are displayed in black and white and then they [the performingtechnologist] physically interrogate the blood vessel, so they look at it andthey see if

they can compress it, Andthen . .. the Dopplerportion of the examination is actuallr whereyou use the sound waves to look at the hloodjlowandthat's in L'Oior.... In the first portion[,] you'd see ... materials. some echo[e]s. Generally the inside ofablood vessel is black and there would be some echo[e]s inside ... And then the blood vessel itselfis not compressible. the vein cannot be compressed because there is something occupying the blood vessel."); page 42, lines 2-3 ("[W]hen you'reusing the Doppler, you're literally listeningto 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. 11

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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 presented an issue offact for thejury to resolve. As Dr. Hughes noted (at page 23, line 18 ofhis deposition), "[i]t ...takes a skilled person to see [the abnormalities on the sonogram].'' It was not the Court's function on summaryjudgmentto interpret ultrasonographic images. particularly where (as more fully set forth inthe margin), the parties' respective experts disagreed as to whether 

### everyimage 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, 119A.D.3d 909, 991 N.Y.S.2d 83 (2d Dept., 2014). 19 "Additionally, because the cause[s] ofaction alleging wrongful death [and loss of services] [were] premised onthe defendant's alleged medical malpractice, the same conclusions apply as to [such] cause[s] ofaction." 

### Matos v. 

### Khan, 119 A.D.3d 909,991 N.Y.S.2d 83 (2d Dept., 2014). Next, by establishingthe existence oftriable issues offact regarding the liability of Dr. Hughes (as predicated on his alleged failure to properly read andinterpret the patient's sonogram), plaintiffalso raised triable issues offact regarding the vicarious liability of AMH in thatregard. 

### See Vichlenski v. 

### Schwartz, 20l A.D.3d 773. 161 N.Y.S.3d 293 (2d Dept.. 2022); 

### Goffredo v. St. Luke's CornwallHosp., 194 A.D.3d 699. 143 N.Y.S.3d 597 (2d Dept., 2021). Finally. the existence oftriable issues offact as to Dr. Hughes'

18 Whereas the radiology defense expert opined (in

### ,r 5 ofhis affirmation in opposition)that Image 25/29 was "apoor image ofthe Doppler being applied at a badangle" and that "the angle ofthe probe was improper," Dr. Hughes testified (at page 25, lines 15-16 ofhis 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 ofplaintiffs expert raised triable issues offact 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 ultrasoundimages showedno evidence ofa DVT. plaint[f]'s expert opinedthat the hlack lentiform area on at least one imageshowed 'a classicsign of DVT!bloodclot. · Thus. the affidavit of'plaintiffs expert squarelycomradictedDr. Perry·s affidavit andcreateda classic battle of the experts on the element of deviation that isproperly leji to a jury for resollllion.") (italics added). 12

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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 alleged failure to properly read and interpretthe patient's sonogram precludedthe grant of partial summaryjudgment on the issue ofliability in plaintiffs favor. Conclusion Accordingly, 

### it is ORDERED that in motion Seq. No. 5, Dr. Vogel and PA LaRossa'sjointmotion for summaryjudgment dismissing all claims as againstthem is 

### grantedwithout 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 

### grantedto the extent that: (l)plaintiff's medical malpractice. wrongful death, and loss ofservices claims, insofar as 

### not predicated, in each instance, on his alleged failure to properly read and interpretthe patient's sonogram, are dismissed as against him; and (2) her informed-consent claim is dismissed as against him; and the remainder ofhis motion is denied, and it is further ORDERED that in motion Seq. No. 6, AMH"s motion is 

### grantedto the extentthat: 

### (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) hervicarious liability claim, insofar as 

### notpredicated on Dr. Hughes' alleged failure to properly read and interpretthe 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 remainderofits motion is denied. and it is further ORDERED that in motion Seq. No. 7. plaintiffs motion for partial summary judgment on the issue ofliability as against Dr. Hughes and AMH is 

### deniedin its entirety, and it is further ORDERED that, for the avoidance ofdoubt, the action shall proceed onplaintiff's medical malpractice, wrongful death, and loss ofservices claims as against Dr. Hughes, and 13

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### on hervicarious liability claim as againstAMH, 

### insofaraspredicated, in each instance, on Dr. Hughes'alleged failure toproperlyreadandinterpret thepatient's sonogram. and 

### it is further

### ORDERED that to reflectthe dismissal ofDr. Vogel and PA

### LaRossa from this action, the caption is amendedtoread as follows:

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X ANN MARIE GRAYas Administratrix ofthe Estate of MICHAEL BRYAN,and ANNMARIEGRAY, 

### Individually, Plaintiffs,



### - against
- STEPHEN HUGHES,M.D., and ALBANY MEMORIAL HOSPITAL, Defendants.



### - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X and it is further IndexNo. 511364/14



### ORDERED that plaintiffs counsel is directed to electronically serve a copy ofthis Decision and Orderwith notice ofentry on defendants' respective counsel and to electronically file an affidavit ofservicewith the Kings County Clerk. This constitutes the Decision and Order ofthe Court.

14 

### Genine D. Edwards 

### J. S. C.

14 of 14 

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