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It was not proven that the surgery was not medically necessaryOctober 28, 2017

Surgicare Surgical Assoc. of Fair Lawn v State Farm Fire & Cas. Co., 2017 NY Slip Op 32202(U)(Krauss, J.)

Surgery denials on medical necessary grounds are probably the most difficult to substantiate in the arbitral forum.  Whether the applicant has no rebuttal, a letter of medical necessity or a full discussion, the losses are unacceptably high.  The litigation scene is a little better as the peers often go unrebutted.  Yet, this case from Civil Bronx mirrors the common arbitration award I have been reviewing the last few weeks on this project.

(1) Dr. Scarpinto did review the physical therapy notes

Dr. Scarpinto felt that surgery was not warranted based on Assignor’s medical records.  Dr. Scarpinto stated that the progress reports for Assignor’s Physical Therapy consistently described his progress as good, and she relied heavily on this fact. The reports she based this on however, are not fact filled narratives about the Assignor’s progress, but rather a series of multiple choice options circled and signed off on by a therapist. Each date has the same options circled from the first date of therapy, through the last. The five options available to circle on the report under progress were very good, good, fair or poor.

(2) Dr. Scarpinto did not review the acupuncture notes

[the acupuncture notes were not reviewed in the report]. These reports cover a period from March through July 2013 and show that Assignor continued to seek relief from the pain, and while the Acupuncture treatments were often noted as
helping, as of July 2013, Assignor continued to suffer from pain and at times perceived no relief in pain even with the treatments

(3) Dr. Scarpinto’s medical rationale for denying treatment

Dr. Sacrpinto did not appear to believe that the physical therapy was as aggressive as it could have been, noting in her peer review “(i)t is important to stress that these physical therapy treatments did not include any form of active rehabilitation which is the standard of care in the rehabilitation of a knee injury. In this case, passive modalities were provided to the claimant …(Peer Review)”.

Dr. Scarpinto also did not believe the information, provided by the Assignor and accepted by his doctors, that Assignor had no prior problems with his knee. She testified at trial that she did not believe the accident caused Assignor’s knee injury. This is also reflected in her Peer Review where she stated “(e)ssentially, the findings notes on this MRI strongly suggest long standing degenerative processes that do not appear to be directly related to the motor vehicle accident in question.”

Dr. Scarpinto then concluded that surgery was not appropriate for a degenerative knee condition and relied upon an article from a medical journal, also submitted in evidence, which specifies the limitations of surgery for a degenerative condition. The article does however state “.. (p)atients with realistic expectations of surgical outcome who specifically understand that the goal of the surgery is to diminish pain and improve function and not to cure their arthritis “ would be appropriate candidates for surgery

(4) Court disproves defense

Dr. Scarpinto was justified in basing her opinion on the assumption that Assignor was lying about previous problems with his left knee, and that the accident was not the cause of his injury, Dr. Scarpinto failed to establish through her testimony that surgery was inconsistent with generally accepted medical practices. While her testimony did establish that there are limitations as to when surgery is appropriate, the authority she relied upon specifically provides that it may be appropriate for patients with realistic expectations as to the surgery being intended to reduce pain rather than cure the degenerative condition. It is precisely due to the ongoing chronic pain that Assignor was referred for the surgery.

Conclusions

It is hard to tell if this decision resulted from  naivete, inappropriately stressing a lack of causal relationship defense that cannot be substantiated without the MRI films and the surgical photos discussed to the trier of the fact or the notion that lack of appropraite physical therapy treatment does not substantiate a lack of medical necessity for extremity surgery.  I cannot tell where this case fell.

But assume the doctor was asked the hypothetical as to why the acupuncture notes did not matter?  Assume the doctor was asked as to why certain types of physical therapy meet some standard (what is the standard)?  Assume the doctor was asked as to the articles, treatises or textbooks stating that the appropriateness of a certain type of PT is a condition precedent to surgery?  Would any of that have established a lack of medical necessity?

Also, inasmuch as the knee is avascular, does the literature support repairing an organ that will not heal on its own?  Will an untreated knee with a tear lead to eventual arthrocis without surgery  The decision is disturbing as a defense practitioner – mainly because I cannot grasp what happened at this bench trial.

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