Khurana v Ng

[*1] Khurana v Ng 2010 NY Slip Op 51216(U) [28 Misc 3d 1208(A)] Decided on June 3, 2010 Supreme Court, New York County Schlesinger, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 3, 2010
Supreme Court, New York County

Rebecca Khurana, as the Administratrix of the Estate of LAV SAMA, Deceased, and on behalf of GINI GULATI, Plaintiffs,

against

Vincent Waikuen Ng, M.D., NEW YORK DOWNTOWN MEDICAL ASSOCIATES, INC., DORIS M. SENEKJIAN, M.D., and NEW YORK DOWNTOWN HOSPITAL, , Defendants.



116610/07



Attorney for Defendant - Dr. Senekjian

Joseph D. La Cava, Esq.

Garson, DeCorato & Cohen, LLP

110 Wall Street, 10th fl.

New York, NY 10005

212-742-8700

Attorney for Dr. Ng

Erika A. Bordan, Esq.

Lewis Johs Avallone Aviles, LLP

61 Broadway

New York, NY 10006

212-233-7195

Attorney for Defendant- NY Hosp

Alexandra Fridel, Esq.

Martin Clearwater & Bell, LLP

220 East 42nd Street

New York, NY 10017

212-697-3122

Attorney for Plaintiffs James N. LiCalzi, Esq.

Duffy & Duffy, Esqs.

1370 RXR Plaza

West Tower 13th fl.

Uniondale, NY 11556

516-394-4200

Alice Schlesinger, J.

This is an action that sounds in medical malpractice and wrongful death. The action revolves around circumstances that occurred on April 11, 2006. On that day the decedent Lav Sama, who had experienced three episodes of chest pain and pressure at his right shoulder and chest, as well as pain within an hour of his arrival at the defendant hospital, paid a visit to the emergency room at New York Downtown Hospital. Mr. Sama, who worked in the area (he lived in New Jersey), was accompanied to the emergency room by several friends. He presented at approximately 11:30 a.m. He gave a history of complaints of episodes of right shoulder pain and chest pain and pressure. His blood pressure at the time was 154/111. He was then 36 years of age. At the moment of presentation, he stated that he was not actually in pain, but he did indicate that the pain he had did increase when he was in a prone position.

In the first instance I have a motion for summary judgment by defendant Dr. Vincent Waikuen Ng. He was Mr. Sama's private physician and he saw the patient later on that same day, after Mr. Sama had been discharged from the emergency room at approximately 1:20 p.m. The original motion is supported by an affirmation from Dr. Mark A. Goodman who is board certified in internal medicine and cardiovascular disease. He has a private practice in Garden City, Long Island. Before Dr. Goodman gives his opinion, that the presentation by Mr. Sama both in the emergency room and later on to Dr. Ng was not characteristic of Angina Pectoris, he first gives the circumstances of the patient's presentation to both the hospital and to Dr. Ng.

As stated earlier, Mr. Sama gave complaints as earlier enumerated and was seen by an emergency room doctor, co-defendant Dr. Doris M. Senekjian. She took a history from Mr. Sama which included his playing golf a day or so earlier. The history also included his description of shooting pains from his shoulder radiating to his right arm and right side of his chest. [*2]

This doctor examined him, found no shortness of breath and no palpitations. She also noted that there were no associated symptoms of nausea, vomiting, shortness of breath or sweating. Further, she noted no family history of heart disease. Finally, she recorded that the patient was a smoker. She ordered an EKG, which was performed at approximately noon and noted to be normal. She also had blood tests done, which significantly tested for Mr. Sama's level of Troponin. This is a protein which is sometimes found in cardiac muscles suggesting a pending attack. This level was normal as well. Finally, his chest x-ray was taken, also read as normal. With these findings, Mr. Sama was released and told not to smoke. Before his release, he was given 30mgs of Toradol, a nonsteroidal anti-inflammatory drug by IV at 12:50 p.m. The overall impression noted by Dr. Senekjian as a diagnosis was musculoskeletal pain.

Soon thereafter Mr. Sama went to see the movant Dr. Ng and similarly gave complaints of a spasm in his right arm traveling to his right chest experienced that day, though he was not in any pain at that moment. Dr. Ng's impression was "status post episode of right arm/chest pain/spasm. Advice given, follow up if symptoms reoccur."

To complete the story here, on April 13 in the early morning hours while at home, Mr. Sama collapsed and went into cardiac arrest. An ambulance was called, and Mr. Sama was taken to an emergency room at St. Barnabas Hospital in Livingston, New Jersey, where he died. An autopsy was performed a day later on April 14 by Dr. Beverly Leffers, a medical examiner in Newark, New Jersey. Dr. Leffers found evidence of severe atherosclerotic disease involving the left anterior descending artery. She found a 1cm long area of up to 85 to 90% narrowing by a firm uncalcified atherosclerotic plaque. Her opinion was that Mr. Sama had died as a consequence of myocardial ischemia and an ischemic arrhythmia, probably ventricular tachycardia and ventricular fibrillation.

It is on the basis of this history and presentation that Dr. Goodman opines, in support of this motion by Dr. Ng, that Dr. Ng did not commit malpractice in the actions that he took after examining his patient on April 11, 2006. Specifically, Dr. Goodman opines that based on Mr. Sama's presentation at the emergency room and at Dr. Ng's office later on, which included a normal EKG, normal blood tests and lack of symptoms in the emergency room, there was no reason to believe that Mr. Sama was then exhibiting a history of acute coronary syndrome or unstable angina. Therefore, he concludes that Dr. Ng did nothing wrong.

I also have a cross-motion by Dr. Senekjian for summary judgment. She bases her motion on Dr. Ng's papers, as well as another motion brought by defendants New York Downtown Hospital and New York Downtown Medical Associates, Inc., also for summary judgment.

The hospital's motion is supported by an affirmation from Dr. Anthony Mustalish, who is board certified in emergency room medicine. He, like Dr. Goodman, gives an opinion that the care at the hospital was in accordance with good and accepted standards and that nothing done (or not done) was a proximate cause of Mr. Sama's death on April 13, 2006. He relies on the same history as Dr. Goodman. He then opines as an emergency room physician that Mr. Sama did not present any classic characteristics of angina pectoris and did not indicate any risk factors of heart disease other than a history of smoking. Again in this regard he particularly notes that the patient's blood chemistries were all normal, as was his EKG.

In the first instance, I do find that the moving papers by all the defendants do make out a prima facie case entitling them to summary judgment. Therefore, the burden shifts to the plaintiff to show whether or not there are legitimate issues here as to whether or not any of these defendants [*3]committed malpractice. In that regard, an affirmation is submitted by a physician who is board certified in thoracic and cardiovascular surgery. This physician graduated from the Yale School of Medicine and did a fellowship in these areas in Harvard. He states that "as a physician specializing in the field of cardiovascular medicine, I am familiar with and experienced in the evaluation, diagnosis and treatment of patients who present to emergency rooms and private physicians with a history and complaints consistent with and/or suggestive of acute coronary syndrome which requires and/or necessitates cardiac care, intervention and treatment."

Plaintiff's expert states that he has reviewed all the applicable records, as well as the EBT's of the parties. He takes issue with the care provided by all the defendants, pointing out that Mr. Sama presented to the hospital with pain within one hour of his having experienced that pain. He disagrees with Dr. Senekjian's impression of "radicular pain", which typically indicates a type of irritation or inflammation. Also, he opines that a normal EKG is not dispositive in these circumstances, nor is a single blood test for Troponin. The latter requires a series of such tests to accurately determine whether this protein is, in fact, present in the cardiac muscles.

Plaintiff's expert further points out that Mr. Sama had other risk factors, beside being a smoker. One of those which he discusses is the decedent's ethnic background. The expert points out that Asian/Indians, such as Mr. Sama, have the highest incidents of ischemic heart disease among all ethnic groups and are affected by it at a much younger age than other groups.

He goes on to say that in his opinion, Mr. Sama did exhibit signs and symptoms consistent with a cardiac etiology when he presented to the hospital and Dr. Ng on April 11. He points out that myocardial ischemia, which is reduced blood flow to the heart, is the most important cause of chest pain/discomfort and/or pressure. His conclusion is that due to the severity of the consequences of a myocardial infarction, a patient such as Mr. Sama who presented with complaints of three episodes of chest and arm pain and pressure is at a high risk for coronary artery disease. Further, Mr. Sama was not a "couch potato" but rather someone who regularly played golf and, therefore, it was unlikely that he was using muscles that were essentially not used on a regular basis. Therefore, Mr. Sama was a patient who had to be immediately referred for a full cardiac work-up. This would have included a consultation with a cardiologist, serial Troponin testing, an exercise stress test, and if indicated, a cardiac catheterization.

Plaintiff's expert opines that it was a departure by all of these defendants to fail to consider the presentation here in the light of a cardiac episode, despite a negative EKG and a normal Troponin level. Additionally, he says that Dr. Goodman is wrong when he indicates that Mr. Sama's greater pain when lying down was not significant for indicating an ischemic problem. With regard to the Troponin, this expert opines that it may take several hours for this level to rise and become abnormal and therefore there must be two tests spaced by several hours apart for an accurate result.

As to the causation issue, this expert indicates with a reasonable degree of medical certainty that, if a full cardiac work-up had been done, in all probability the ischemia would have been detected and angioplasty performed, which would have saved Mr. Sama's life.In reply, the defendants point out that the opposition was untimely by approximately two to three weeks. While this is true, plaintiff's counsel indicated that certain personal issues delayed the opposition. In the interest of justice, in this serious case, I am accepting the opposition. Further, defense points out that the plaintiff's expert, who they correctly identify as Dr. Francis R. Coughing, has not practiced for [*4]approximately 25 years and his opinions should not be accepted because his speciality was cardiovascular surgery, as opposed to cardiology.

I find that Dr. Coughing is qualified to give opinions in the area of cardiology based on his training and experience in this area. I also find that his opinions make sense and are sufficient to create an issue as to whether each of these defendants did all that was required to rule out a cardiac problem upon Mr. Sama's presentation on April 11, 2006. Dr. Coughing succeeds in creating issues in this regard as to whether, if additional steps had been taken such as a stress test and additional Troponin testing, the likelihood was that the ischemic condition would have been diagnosed and treated. Therefore, the motions are all denied.

Accordingly, it is hereby

ORDERED that the motion for summary judgment by defendant Vincent Waikuen Ng, M.D., and the cross-motion for summary judgment by defendant Doris M. Senekjian, M.D., are denied; and it is further

ORDERED that the motion for summary judgment by defendants New York Downtown Medical Associates, Inc., and New York Downtown Hospital is denied.

This decision constitutes the order of the Court.

Dated: June 3, 2010

_______________________

J.S.C.

Attorney for Defendant - Dr. Senekjian

Joseph D. La Cava, Esq.

Garson, DeCorato & Cohen, LLP

110 Wall Street, 10th fl.

New York, NY 10005

212-742-8700

Attorney for Dr. Ng

Erika A. Bordan, Esq.

Lewis Johs Avallone Aviles, LLP

61 Broadway

New York, NY 10006

212-233-7195

Attorney for Defendant- NY Hosp

Alexandra Fridel, Esq.

Martin Clearwater & Bell, LLP

220 East 42nd Street

New York, NY 10017

212-697-3122

Attorney for Plaintiffs [*5]

James N. LiCalzi, Esq.

Duffy & Duffy, Esqs.

1370 RXR Plaza

West Tower 13th fl.

Uniondale, NY 11556

516-394-4200