Novak v Klein

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[*1] Novak v Klein 2019 NY Slip Op 51666(U) Decided on October 21, 2019 Supreme Court, Suffolk County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 21, 2019
Supreme Court, Suffolk County

Sheri Novak, as Administrator of the Estate of LAWRENCE SCOTT NOVAK, deceased, and SHERI NOVAK, individually, Plaintiffs,




Pegalis Law Group, LLC

1 Hollow Lane, Suite 107

Lake Success, New York 11042

FOR Plaintiffs

Shaub Ahmuty Citrin & Spratt, LLP

1983 Marcus Avenue

Lake Success, New York 11042

FOR Dr. Freilich and Mount Sinai Manhasset Medical

Attorneys did not file papers for the remaining defendants
Carmen Victoria St. George, J.

The following electronically-filed papers were read upon this motion:

Notice of Motion/Order to Show Cause 63-96

Answering Papers 101-113

Reply 116

Briefs: Plaintiff's/Petitioner's 103


Plaintiffs commenced this medical malpractice/wrongful death action following the death of plaintiff's decedent, Lawrence Scott Novak. Sheri Novak, his wife, sues derivatively for loss of services. Mr. Novak died on July 13, 2015 as the result of congestive heart failure due to hypertensive and arteriosclerotic heart disease. He was at work at his law office in the late afternoon of July 13, 2015 when he experienced the fatal cardiac arrest. Co-workers heard a thud come from Mr. Novak's office and they called 911. When ambulance personnel arrived, Mr. Novak was unresponsive. Despite resuscitative efforts, Mr. Novak was pronounced dead at Syosset Hospital/Northwell Health at approximately 6:23 p.m.[FN1] Mr. Novak's death occurred only eleven (11) days after his July 2, 2015 visit to Aaron Freilich, M.D. and his practice (Mount Sinai Manhasset Medical). Mr. Novak was fifty-one (51) years old at the time of his death.

Dr. Freilich and Ichan School of Medicine at Mount Sinai s/h/a Mount Sinai Manhasset Medical (MSMM) move this Court for an Order granting summary judgment dismissal of the complaint in their favor. Plaintiffs oppose the requested relief. None of the other co-defendants have taken a position concerning the instant motion.

It is undisputed that Mr. Novak was referred to Dr. Freilich by co-defendant William [*2]Klein, M.D. after the results of a calcium score test performed on June 5, 2015 revealed an abnormally high value of 556.

Essentially, plaintiffs allege in their Bill of Particulars that Dr. Freilich and MSMM, failed to properly appreciate the risk of the recent abnormal calcium score (556), the results of an electrocardiogram (EKG) performed in Dr. Freilich's office, and Mr. Novak's cardiac risk factors (obesity, hyperlipidemia, genetic predisposition, anxiety, sleep apnea, ADD psoriasis). According to plaintiffs, Dr. Freilich should have done a number of things on July 2, 2015, chief among them immediately admitting Mr. Novak to a hospital, or conducting some other immediate invasive testing/workup and coronary intervention (cardiac catheterization and stress test).[FN2] Instead, Dr. Freilich placed Mr. Novak on baby aspirin, advised pursuit of diet and exercise with possible bariatric surgery, and scheduled Mr. Novak to undergo a nuclear stress test within fifteen (15) days of July 2nd. If the results of the stress test showed more than moderate disease, then an angiogram would be considered. Mr. Novak was to follow up with Dr. Freilich within seven months or sooner. The stress test was scheduled for July 15, 2015, but Mr. Novak died two days before the test date.

Dr. Freilich and his practice contend that immediate intervention/admission to a hospital were not warranted because Mr. Novak did not make any cardiac complaints on July 2, 2015, nor did he make any cardiac complaints in the following 11 days before his death. Also, the movants contend that the EKG results from the July 2, 2015 visit were correctly interpreted as being normal, and that the Q wave detected in the third lead connected to Mr. Novak was a "normal variant." According to the movants, the lack of cardiac complaints, normal EKG, and normal physical examination findings gave "no indication of this patient's imminent cardiac event, which caused him to unforeseeably pass away on 07/13/15."

Summary Judgment Standard and Medical Malpractice Actions

It is well recognized that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361 [l974]). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact (Cauthers v Brite Ideas, LLC, 41 AD3d 755 [2d Dept 2007]). The Court's analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the plaintiffs (Makaj v Metropolitan Transportation Authority, 18 AD3d 625 [2d Dept 2005]).

The proponent of a summary judgment motion must tender sufficient evidence to demonstrate the absence any material issue of fact (Winegrad v. New York University Medical [*3]Center, 64 NY2d 851, 853 [1985]). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Id.) "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

"'The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice and evidence that such departure was a proximate cause of injury or damage'" (Whitnum v Plastic and Reconstructive Surgery, P.C., 142 AD3d 495 [2d Dept 2016], quoting Geffner v. North Shore University Hospital, 57 AD3d 839, 842 [2d Dept 2008]). A defendant "moving for summary judgment must establish, prima facie, either that there was no departure or that any departure was not a proximate cause of the plaintiff's injuries" (Leigh v Kyle, 143 AD3d 779 [2d Dept 2016], quoting Gillespie v New York Hospital Queens, 96 AD3d 901, 902 [2d Dept 2012]).

Here, the undisputed autopsy report notes that Mr. Novak suffered a 90% occlusion in multiple foci of the left anterior descending artery, 100% occlusion in the proximal left circumflex artery and 100% occlusion in the proximal to mid-right coronary artery. The question presented is whether Dr. Freilich's care rendered to Mr. Novak comported with the applicable standard of care, and if it did not, whether that departure caused Mr. Novak's death.

Dr. Freilich and his practice argue that they acted within good and accepted standards of medical care during the July 2, 2015 office visit and that none of their actions or omissions were the proximate cause of the alleged injuries, including death. According to Dr. Freilich and his practice, Mr. Novak was thoroughly evaluated and examined; the significance of his abnormal calcium score was appropriately considered, and the decision to start Mr. Novak on baby aspirin and schedule him for a nuclear stress test within 15 days was appropriate given the normal EKG results and the absence of any cardiac complaints.

In support of their summary judgment motion, Dr. Freilich and his practice submit, inter alia, the pleadings, the autopsy report, plaintiffs' expert response, medical records, deposition testimony (Sheri Novak, Dr. Freilich, William Klein, M.D.) and the affirmation of their expert, Malcolm Phillips, M.D.

Dr. Phillips, a cardiologist, bases his opinions on his experience and various materials related to this case, including the pleadings, plaintiff's expert witness disclosure, deposition transcripts of the parties, Dr. Klein's chart, St. Francis Hospital's and Syosset Hospital's charts, Dr. Freilich's chart, the affidavit of Dr. Freilich's medical secretary, Nassau County ambulance records, and the Nassau County Medical Examiner's file, photographs and autopsy report.

At the outset, Dr. Phillips opines that the care and treatment rendered to Mr. Novak by Dr. Freilich and his office staff "was completely in accord with accepted standards of medical practice which existed at the time of this patient's treatment. Moreover, no act or omissions of Dr. Aaron Freilich and the staff of his office caused, contributed to, or exacerbated the injuries alleged herein, including this patient's death."

Dr. Phillips explains in his affirmation that the calcium score is an approximate measurement of the calcium (plaque) existing in the walls of the arteries that supply blood to the heart muscle. Although the score of 556 is conceded by Dr. Phillips to be abnormal, that score, by itself, is insufficient reason to immediately refer a patient to a hospital. The Court notes that Dr. Phillips does not state what calcium score is considered normal, or how far the score of 556 [*4]is from normal.

Dr. Phillips emphasizes that Dr. Freilich took note of Mr. Novak's risk factors, including his obesity, history of hyperlipidemia, sleep apnea, anxiety, psoriasis, and other considerations, the medications Mr. Novak was taking, the family history that included Mr. Novak's father's onset of heart disease at fifty-three (53) years of age, and a strong genetic predisposition for heart disease. Dr. Phillips also emphasizes that Mr. Novak denied to Dr. Freilich having any of the following symptoms: chest pain, chest pressure, heart palpitations, orthopnea, dizziness, swollen legs, exertional chest pain, chills, nausea, vomiting, abdominal pain, and paroxysmal nocturnal dyspnea. It is acknowledged by Dr. Phillips that Mr. Novak told Dr. Freilich that he had some shortness of breath with inclines. According to Dr. Phillips, this is a "non-specific" finding.

Further according to Dr. Phillips, Dr. Freilich's physical examination of Mr. Novak yielded "entirely normal" results. Mr. Novak's jugular vein was not distended, his lungs were clear, and the cardiac examination was "significantly normal; there was regular rate and rhythm, no murmurs, no rubs, no gallops, no heaves, and no thrills." Mr. Novak's extremities were normal, and his neurologic examination was also normal.

Regarding the EKG performed during the July 2, 2015 office visit, Dr. Phillips opines that the results thereof were "normal. It shows a normal sinus rhythm, including an isolated Q wave in lead III. A normal sinus rhythm is a normal finding. An isolated Q wave in lead III is a normal finding." According to Dr. Phillips, because the EKG did not show any "STT" waves to suggest an acute myocardial infarction and no abnormal Q waves to suggest a prior silent myocardial infarction, there was nothing present on the July 2, 2015 EKG to suggest a silent myocardial infarction, and Dr. Freilich properly interpreted the EKG results as normal within the accepted standards of care.

Further according to Dr. Phillips, Dr. Freilich's diagnoses of obstructive sleep apnea, arteriosclerotic heart disease, hyperlipidemia, dyspnea and hypertension were appropriate, and the asymptomatic abnormal calcium score "triggered the need for further work-up by way of a careful history, physical, EKG, and a stress test," not an immediate referral to a hospital.

Dr. Freilich's plan of care was also appropriate according to Dr. Phillips. It is noted that Dr. Freilich discussed Mr. Novak's overall risk based upon the calcium score as being low on a yearly basis, and that to investigate the extent of the disease, or lack thereof, a nuclear stress test was ordered. Apparently, Dr. Freilich documented that if more than moderate heart disease was found as a result of the stress test, then he would consider ordering an angiogram for Mr. Novak. Dr. Freilich also considered prescribing an "ACE inhibitor" for Mr. Novak's "borderline" hypertension and he also ordered an echocardiogram to assess right-sided pressure in view of Mr. Novaks sleep apnea. Dr. Freilich noted that he would be "very aggressive" in keeping Mr. Novak's LDL cholesterol below 90 and that part of the plan for Mr. Novak was to pursue diet and exercise, consider bariatric surgery, and control his anxiety to minimize progression of heart disease. Finally, Dr. Freilich prescribed 81 milligrams daily of baby aspirin and directed Mr. Novak to follow up in no more than seven months.

The directive to schedule the test within 15 days of the July 2nd visit was also appropriate and within the standard of care given what Dr. Phillips characterizes as "no indication for an emergent or immediate stress test to be performed." In fact, Dr. Phillips opines that "[t]here was absolutely no appreciable indication during the office visit of 07/02/15 that this patient would experience a cardiac event 11 days later. During the visit, the patient had no cardiac symptoms [*5]at all and was stable." The standard of care, according to Dr. Phillips, did not require Dr. Freilich to refer Mr. Novak to an emergency room, or to admit him to a hospital, or refer him for cardiac catheterization, or refer him to a different specialist. Moreover, Dr. Phillips states that there is nothing in the entirety of the record that he reviewed supporting claims that either Dr. Freilich or his staff were unqualified to examine, evaluate and/or treat Mr. Novak.

Dr. Phillips further points to the record that he reviewed revealing that Mr. Novak remained asymptomatic during the two weeks following the July 2, 2015 office visit, including when he engaged in his usual daily activities (walking 1.33 miles every morning with his wife, swimming in the pool nearly every day, dining, having sexual intercourse with his wife, shopping, and working at his law firm). Dr. Phillips also points to the deposition of Mr. Novak's wife confirming that Mr. Novak was asymptomatic during the two months prior to his passing. In sum, Dr. Phillips opines that, "[d]espite all appropriate, indicated, and timely measures implemented by Dr. Freilich—all of which were rendered with accepted standards of care—this patient suddenly and unpredictably passed away on 07/13/15."

Based upon the foregoing, these defendants have demonstrated their prima facie entitlement to summary judgment as a matter of law as to the causes of action alleged against them for medical malpractice and wrongful death. The expert's statements of opinion establish prima facie not only that the care and treatment rendered by the moving defendants was appropriate, but that expert also establishes prima facie that the care and treatment rendered by the moving defendants was not the proximate cause of Mr. Novak's injuries, including his death.

Defendants' expert does not offer any opinion on the cause of action in the complaint alleging a lack of informed consent; therefore, defendants have not established their prima facie entitlement to summary judgment on this cause of action.

In opposition to the instant motion, plaintiffs argue that Dr. Freilich's approach to Mr. Novak's presentation was negligent and that "[t]he issue of fact presented to this Honorable Court is the timing of that echocardiogram and stress test and the reason it was needed. Since the experts in the field. . .disagree on the pertinent factual basis and need and timing of such interventions, it is most respectfully submitted that such creates an issue of fact. . ."

Plaintiffs submit, inter alia, the pleadings, medical records, the deposition transcripts of Sheri Novak and Dr. Freilich, the autopsy report, and the affirmation of their expert cardiologist. Plaintiffs' expert states that he/she is fully familiar with the standard of care as it applies to practicing cardiologists who are seeing patients like Mr. Novak for a first-time cardiac evaluation, and that he/she reviewed Dr. Freilich's records and deposition transcript, Dr. Klein's records, the hospital record, autopsy report, the deposition transcripts of Sheri Novak and Dr. Klein, and the defense submission in support of the instant motion, including Dr. Phillips' affirmation.

The expert states that Dr. Freilich departed from accepted standards of care by failing, "most importantly to heed a critical cardiac symptom that Dr. Freilich ascertained during his history portion of the office visit. That critical piece of information was the complaint of shortness of breath while walking on an incline." According to the expert cardiologist, shortness of breath while walking on an incline "is a coronary symptom until proven otherwise and is a sign of cardiac ischemia [decreased blood flow and oxygen to the heart muscle] that with Mr. Novak's known cardiac risk factors, known EKG findings. . . requires an immediate workup, including an immediate echocardiogram to ascertain the status of the heart and in particular, heart wall motion, followed by an immediate stress test." According to the expert, Dr. Freilich [*6]obtained this critical piece of information, but "failed to employ it for the benefit of his patient." Thus, plaintiffs' expert directly contradicts Dr. Phillips' opinion that shortness of breath on inclines is a "non-specific" finding. This alone creates an issue of fact requiring denial of the instant summary judgment motion.

Plaintiffs' expert also disagrees with Dr. Phillips' opinion that Mr. Novak was not suffering from active restricted blood flow to his heart when he presented to Dr. Freilich. According to plaintiffs' expert, "[s]hortness of breath on inclines cannot be ignored because the patient does not have other cardiac symptoms;" "[s]hortness of breath on simple activities of daily living is a coronary symptom and is a warning sign of active ischemia that has not yet caused the patient's death."

In the expert's opinion, Dr. Freilich failed to understand and appreciate the significance of Mr. Novak's history that he had obtained, and that based upon the totality of the July 2nd office visit, it was a departure from the standard of care when Dr. Freilich failed to do an immediate echocardiogram to protect the patient from the risk that was facing him. The expert further explains that, with Mr. Novak's history and findings, shortness of breath on incline was an important symptom, even when a patient does not identify by pain or overt shortness of breath. According to him/her, coronary symptoms may be present inconsistently, even with severe coronary artery disease, and thus any symptomology "needs to be immediately evaluated," especially considering Mr. Novak's high calcium score, history of high cholesterol, and borderline hypertension.

Regarding the EKG results obtained during the July 2, 2015 visit, the expert cardiologist states that "this patient had EKG findings that have been consistently identifying inferior wall abnormalities or infarcts." According to the expert, Dr. Freilich negligently decided that he did not need to obtain prior EKG records from Dr. Klein. If he had obtained the prior EKG records from Dr. Klein, the expert opines that Dr. Freilich would have noted that the July 2, 2015 EKG finding correlated with an old inferior wall infarct (silent heart attack) documented in Dr. Klein's EKG records. Hence, according to plaintiffs' expert, "the echocardiogram for this man with his high risk status, the identified calcium score in a distribution in the coronary arteries that service the inferior wall [of the heart], the EKG findings that evidence abnormalities or potential abnormalities in the inferior wall and symptoms that are coronary in nature until proven otherwise" dictated an immediate need for an echocardiogram and stress test. The departure, as opined by the expert, was that Dr. Freilich delayed the echocardiogram and stress test by allowing it to be scheduled within 15 days of the July 2nd office visit.

Apart from the expert's opinion concerning the failure to obtain prior EKG records, plaintiffs' expert disagrees with Dr. Phillips as to the interpretation of the isolated Q wave in lead III. According to plaintiffs' expert, simply because an EKG finding can be a normal variant in one person does not mean that it is not an abnormality in other patients, especially when a patient like Mr. Novak presents with a calcium score abnormality, a history of cardiac risk factors, and shortness of breath experienced when walking on inclines. In the plaintiffs' expert's opinion, Mr. Novak's death "was totally and completely avoidable if Dr. Freilich had complied with the standard of care on July 2, 2015."

As to the abnormal calcium score specifically, plaintiffs' expert notes that it not only indicted an increased overall risk of heart attack, but that the arteries servicing the inferior wall had increased risk for arteriosclerotic heart disease based on the calcium score analyses. The area identified by the calcium score analyses "is the same area of the heart that had the old EKG [*7]findings;" therefore, Dr. Freilich should have noted that the arteries servicing the inferior wall were at an increased risk. This, combined with Mr. Novak's history and shortness of breath on incline "was an indication for emergent or immediate workup including echocardiogram and stress testing."

Plaintiffs' expert states that an echocardiogram would have revealed abnormalities that resulted from Mr. Novak's prior silent heart attack, which event apparently produced no warning signs. Thus, had Dr. Freilich performed an immediate echocardiogram and seen the wall motion abnormalities of Mr. Novak's left ventricle, thereby revealing the previous heart attack, Dr. Freilich would have been alerted that Mr. Novak could suffer sudden cardiac death without any warning signs.

According to plaintiffs' expert, it was within the standard of practice in 2015 for a cardiologist to know that the lack of chest pain or symptoms of chest pain can be meaningless, and further according to him/her, the autopsy findings confirm the old cardiac damage. Had Dr. Freilich performed an immediate echocardiogram and seen the abnormalities, taken together with Mr. Novak's presentation and history, these factors "would have revealed to Dr. Freilich the need for an emergent stress test. . ."

The expert further opines that, based upon the nature and extent of the coronary artery disease revealed upon on autopsy, the stress test would have revealed that Mr. Novak's heart would suffer restricted blood supply at low levels of activity. Thus, the expert concludes that Dr. Freilich did not appreciate the import of Mr. Novak's report of shortness of breath on incline, did not elicit from Mr. Novak further information concerning the extent of his shortness of breath, and that Dr. Freilich further compounded this lack of appreciation of this indicator by not conducting an immediate stress test and by failing to instruct Mr. Novak to restrict his daily activities until the stress test could be performed and the results interpreted.

Since Dr. Freilich testified that it was too late in the day to perform a stress test in the office, plaintiffs' expert opines that Dr. Freilich should have sent Mr. Novak to the hospital for the test rather than permitting Mr. Novak to schedule the test at his convenience. All the departures opined about by plaintiffs' expert further lead the expert to opine that the departures caused and contributed to Mr. Novak's death just days after the subject office visit, and before the scheduled and "negligently delayed" stress test could be performed.

Based upon the foregoing, plaintiffs' expert has raised questions of fact as to whether Dr. Freilich and his practice were negligent by departing from accepted standards of medical care and whether the alleged negligence was a substantial contributing factor to Mr. Novak's injury and death (see generally Hayden v. Gordon, 91 AD3d 819 [2d Dept 2012]; Bennett v. Knipfing, 262 AD2d 260 [2d Dept 1999]; Weissman v. Wider, 235 AD2d 474 [2d Dept 1997]; Viti v. Franklin General Hospital, 190 AD2d 790 [2d Dept 1993]).

Dr. Freilich and MSMM's summary judgment motion is denied.

The foregoing constitutes the Decision and Order of this Court.

Dated: October 21, 2019

Riverhead, NY


Footnote 1:This action against Northwell Health has been discontinued by stipulation. This action has also been discontinued against Manhasset Medical Associates, P.C.

Footnote 2:The original Bill of Particulars alleges that the relevant time period as to Dr. Freilich and his practice is July 2, 2015 through July 13, 2015. An Amended Bill of Particulars expands the relevant time period as to Dr. Freilich and his practice to the period from June 18, 2015 through July 13, 2015; however, Dr. Freilich's first and only meeting with Mr. Novak occurred on July 2, 2015. At oral argument, plaintiffs' counsel explained that the reason for amending the Bill of Particulars was because of deposition testimony that Mr. Novak called Dr. Freilich's office on June 18, 2015 to schedule the appointment; however, plaintiffs' counsel stated that he did "not think it will amount to anything once the testimony is heard that he was there on July 2nd, and there was time and opportunity to intercede in the proper manner before he demised July 13th."

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