New trial ordered due to physician unavailability

Normandin v Bell, 2018 NY Slip Op 04053 (3d Dept. 2018)

“When the expert eventually arrived in the late morning of December 1, 2016, he did not have his original file with him. (In the Third Department, the local rules require the treating doctor to have the original file with them.)

According to the expert, he left the original file in his hotel and it was his belief that it was not necessary for him to have it in order to testify. Defendant objected [*2]to having the expert testify until the original file was with him. Supreme Court directed the expert to have his office make arrangements to immediately bring the original file to the courthouse with the hope that it would arrive in the afternoon. According to the court, the expert could then testify that afternoon and finish the next day, on Friday, December 2, 2016. Plaintiffs’ counsel, however, advised the court that the expert had scheduled appointments with patients on December 2, 2016 and was unavailable to testify that day or on December 5, 2016. The next available day for the expert was Tuesday, December 6, 2016. The court, however, instructed the expert to reschedule his appointments. The expert testified in the afternoon of December 1, 2016, but by the completion of direct examination by plaintiffs’ counsel, the original file had not arrived. Defendant thereafter orally moved to strike the expert’s testimony. The court denied the oral application as premature.

On December 2, 2016, plaintiffs’ expert did not appear. Defendant renewed his motion to strike the expert’s testimony and plaintiffs moved for, among other things, a continuance. Supreme Court, among other things, denied plaintiffs’ motion for a continuance and granted defendant’s motion to strike. After plaintiffs rested, defendant moved to dismiss the complaint based upon plaintiffs’ failure to prove a prima facie case due to the absence of expert testimony. Supreme Court granted the motion and a judgment was subsequently entered thereon. Plaintiffs now appeal. We reverse.

Whether to grant a continuance rests in the sound discretion of the court (see Matter of Anthony M., 63 NY2d 270, 283 [1984]; Stone v Hidle, 266 AD2d 705, 706 [1999]) and, absent an abuse of such discretion, the court’s determination will not be disturbed (see Gutin-Nedo v Marshall, Cheung & Diamond, 301 AD2d 728, 729 [2003]; Gombas v Roberts, 104 AD2d 521, 522 [1984]). “[I]t is an abuse of the court’s discretion to deny a continuance where the application complies with every requirement of the law and is not made merely for delay, where the evidence is material and where the need for a continuance does not result from the failure to exercise due diligence” (Cirino v St. John, 146 AD2d 912, 913 [1989] [internal quotation marks and citation omitted]; see Black v St. Luke’s Cornwall Hosp., 112 AD3d 661, 661 [2013]; Brusco v Davis-Klages, 302 AD2d 674, 674 [2003]).

We conclude that plaintiffs’ motion for a continuance should have been granted (see Stevens v Auburn Mem. Hosp., 286 AD2d 965, 966 [2001]; Cirino v St. John, 146 AD2d at 914). The record does not support Supreme Court’s finding that the failure of plaintiffs’ expert to appear and complete his testimony on December 2, 2016 stemmed from a lack of due diligence by plaintiffs (see Brusco v Davis-Klages, 302 AD2d at 674-675; compare McKenna v Connors, 36 AD3d 1062, 1064 [2007], lv dismissed and denied 8 NY3d 969 [2007]). Furthermore, the expert’s testimony was material, plaintiffs requested only a brief adjournment, the court had allotted two weeks for trial and the continuance request was not made for the purpose of delay. Accordingly, Supreme Court abused its discretion in denying plaintiffs’ request for a continuance (see Zysk v Bley, 24 AD3d 757, 758 [2005]; Mura v Gordon, 252 AD2d 485, 485 [1998]; Hoffner v County of Putnam, 167 AD2d 755, 756 [1990]; Gombas v Roberts, 104 AD2d at 522).

In the real world of law, this type of circumstance always calls for a re-trial.  I would say that even in NF provided you get the availability dates of the doctor, this will work also.

Ouch

Pascocello v Jibone, 2018 NY Slip Op 03466 (1st Dept. 2018)

“An expert’s opinion “must be based on facts in the record or personally known to the witness” (Hambsch v New York City Tr. Auth., 63 NY2d 723, 725 [1984] [internal quotation marks omitted]; see Roques v Noble, 73 AD3d 204, 206 [1st Dept 2010]), and in the absence of such record support, an expert’s opinion is without probative force (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). Here, Supreme Court properly precluded Dr. Toosi from offering an opinion based on photographs for which no proper foundation had been established.

Out of scope – need foundation

Gullo v Bellhaven Ctr. for Geriatric & Rehabilitative Care, Inc., 2018 NY Slip Op 00279 (2d Dept. 2018)

“Here, Shapiro established his prima facie entitlement to judgment as a matter of law by submitting an affirmation of his medical expert, who addressed the specific allegations of malpractice set forth in the plaintiffs’ bills of particulars. The expert concluded that Shapiro did not [*2]depart from the applicable standard of care and that, in any event, the alleged departures were not a proximate cause of any alleged injuries. In opposition, the affidavit of the plaintiffs’ expert did not raise a triable issue of fact. Where, as here, “a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion” (DiLorenzo v Zaso, 148 AD3d 1111, 1113 [internal quotation marks omitted]; see Tsimbler v Fell, 123 AD3d 1009, 1009-1010; Feuer v Ng, 136 AD3d at 707). The plaintiffs’ expert failed to provide such foundation. ”

There is this doctor who is now signing affidavits of merit in Court actions.  He is a pediatrician opining on the efficacy of pain creams.  I will not say more.

Out of scope peer: it is okay

Queens Vil. Med. Care, P.C. v Government Employees Ins. Co., 2017 NY Slip Op 51799(U)(App. Term 2d Dept. 2017)

Plaintiff moved to preclude defendant’s expert medical witness from testifying on the ground that his specialty is physical medicine and rehabilitation, while the author of the peer report is an orthopedic surgeon who stated in the peer review report that he was conducting the review from an orthopedic surgery standpoint. The court precluded the witness, granted plaintiff’s application for a directed verdict and awarded judgment in favor of plaintiff in the principal sum of $2,671.

An expert medical witness’s specialty goes to the weight to be given to the testimony and not to the witness’s competency to testify as an expert (see Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of NY, 54 Misc 3d 129[A], 2016 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Thus, defendant’s witness should have been permitted to testify.”

This is a really interesting paradigm.  There is case law as we all know about the out of specialty doctor.  A PMR commenting on an orthopedist appears to be inappropriate in light of the Second Department case law on the issue involving out of specialty expert evidence.

Yet, if we are discussing PT, then perhaps the weight of evidence rule is correct?

Subpoena the records

Porcha v Binette, 2017 NY Slip Op 08141 (4th Dept, 2017)

(1) After defendants gave notice that they intended to call Dr. Riegler as an expert witness at trial, plaintiff served a judicial subpoena duces tecum on the nonparties and defendants’ insurer seeking the production of various documents and materials. As relevant to these appeals, in paragraph two of the subpoena plaintiff sought production of all billing and payment records related to examinations performed by Dr. Riegler on behalf of all insurance companies and attorneys for the prior five years. Plaintiff sought such information to ascertain any possible bias or interest on the part of Dr. Riegler.

(2) The nonparties and defendants moved, inter alia, to quash the subpoena, and Supreme Court denied the motions in part. The nonparties and defendants now appeal. Contrary to the contention of the nonparties and defendants, the court properly denied those parts of the motions seeking to quash paragraph two of the subpoena. Plaintiff was entitled to the information to assist her in preparing questions for cross-examination of Dr. Riegler concerning his bias or interest (see Dominicci v Ford, 119 AD3d 1360, 1361 [4th Dept 2014]; see generally Salm v Moses, 13 NY3d 816, 818 [2009]).

When a doctor crosses the line

Harris v Campbell, 2017 NY Slip Op 08112 (4th Dept. 2017)

(1) CPLR 3101(d)

“Contrary to plaintiffs’ contention, the court properly limited the testimony of one of plaintiff’s treating physicians. “CPLR 3101 (d) (1) applies only to experts retained to give opinion testimony at trial, and not to treating physicians, other medical providers, or other fact witnesses” (Rook v 60 Key Ctr., 239 AD2d 926, 927 [4th Dept 1997]). ” Where . . . a plaintiff’s intended expert medical witness is a treating physician whose records and reports have been fully disclosed . . . , a failure to serve a CPLR 3101 (d) notice regarding that doctor does not warrant preclusion of that expert’s testimony on causation, since the defendant has sufficient notice of the proposed testimony to negate any claim of surprise or prejudice’ ” (Hamer v City of New York, 106 AD3d 504, 509 [1st Dept 2013]). Here, one of plaintiff’s treating physicians did not provide any expert disclosure, and during trial he indicated that, in addition to being a medical doctor, he received a Ph.D. in biomechanical engineering and he often relies on his engineering background in his medical practice. Subsequently, that treating physician was asked some questions pertaining to biomechanics, and specifically was asked about the amount of force needed to cause a lumbar injury. We conclude that defendant’s objections to that line of questioning were properly sustained inasmuch as defendant did not receive sufficient notice that the treating physician relied on his engineering background to support his opinions and conclusions about plaintiff’s injuries (see generally id.). Indeed, plaintiffs made no attempt in response to defendant’s objections to point to any medical records or other documentation that would establish that defendant had such notice.”

(2) “We reject plaintiffs’ contention with respect to the photographs of plaintiff’s vehicle inasmuch as it is well established that “[p]hotographs showing no damage to a plaintiff’s vehicle are admissible to impeach a plaintiff’s credibility on the issue whether the accident caused the alleged injuries” (Tout v Zsiros, 49 AD3d 1296, 1297 [4th Dept 2008], lv denied 10 NY3d 713 [2008]). Furthermore, “even when liability is not at issue, proof as to the happening of an accident is probative and admissible as it describes the force of an impact or other incident that would help in determining the nature or extent of injuries and thus relate to the question of damages’ ” (Anderson v Dainack, 39 AD3d 1065, 1066 [3d Dept 2007])”

By-Report

Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 2017 NY Slip Op 51452(U)(App. Term 2d Dept. 2017)

“It is undisputed that defendant denied plaintiff’s claim for services billed under CPT code 97039 in its entirety. Because the workers’ compensation fee schedule has assigned a “By Report” designation for that CPT code, a provider billing under that CPT code is required to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement. Plaintiff properly argues that where, as here, a provider does not [*2]provide such documentation with its claim form, and the insurer will not pay the claim as submitted, 11 NYCRR 65-3.5 (b) requires the insurer to, within 15 business days of its receipt of the claim form, request “any additional verification required by the insurer to establish proof of claim” (see Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 54 Misc 3d 135[A], 2017 NY Slip Op 50101[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

The record demonstrates that defendant received the claim form and that, with respect to the services at issue, its denial of the claim was based upon a failure to provide documentation. Plaintiff correctly argues that, because defendant never requested such documentation, defendant’s denial of claim form is without merit as a matter of law. Consequently, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 should have been denied and the branch of plaintiff’s cross motion seeking summary judgment on that portion of the complaint should have been granted (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).”

It is hard not to have seen this result coming.  But it should be made clear that the failure to seek verification does not end the inquiry.  Assuming, as is usually the case, that verification is not sought, an expert review is necessary to determine the compensability, if any, of the service.  Similar to the failure to seek verification when the defense is lack of medical necessity, the provider can argue that the review is based upon an inadequate factual basis.

It was not proven that the surgery was not medically necessary

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.

The electrodiagnostic service was not medically appropriate

Cappello v Global Liberty Ins. Co. of N.Y., 2017 NY Slip Op 51415(U)(App. Term 1st Dept. 2017)

(1) “At trial, Dr. Notabartolo testified that in his opinion the services provided by plaintiff, specifically, electromyography and nerve conduction velocity diagnostic testing, were not medically necessary because there was no indication of a “diagnostic dilemma” that would warrant such testing. The witness explained that the assignor was not neurologically deteriorating and was responding to chiropractic treatment. Dr. Notabartolo’s peer review report reaching the same conclusion was also stipulated into evidence.”

(2) “Dr. Notabartolo’s testimony, which the court expressly found credible, demonstrated a factual basis and a medical rationale for his determination that there was no medical necessity for the services at issue here (see New Horizon Surgical Ctr., L.L.C. v Allstate Ins. Co., 52 Misc 3d 139[A], 2016 NY Slip Op 51125[U] [App Term, 2d, 11th and 13th Jud Dists 2016]). Thus, the burden shifted to plaintiff to present his own evidence of medical necessity (see West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2nd and 11th Jud Dists 2006]). Plaintiff, however, called no witnesses to rebut defendant’s evidence. In these circumstances, plaintiff was not entitled to judgment in its favor (see All Is. [*2]Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 33 Misc 3d 142[A], 2011 NY Slip Op 52227[U] [App Term, 9th and 10th Jud Dists 2011]; Specialty Surgical Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th and 10th Jud Dists 2010]). Accordingly, we reverse and direct entry of judgment in favor of defendant dismissing the complaint.”

The impetus to filing this appeal was the report from the attorney stating that the peer was credible  but Defendant did not meet its burden.  This caused me to obtain the transcript.  As this was an EMG/NCV case and the expert gave two of 3 rationales for finding the service not appropriate, it seemed like a candidate for appeal.  Except for All Is. Med Care, it looks like my brief made its way into the per curiam opinion.

Attacking the experts

Montas v Abouel-Ela, 2017 NY Slip Op 07413 (1st Dept. 2017)

“Plaintiff has not demonstrated conduct by defendant’s counsel that would warrant reversal. Defendant’s counsel was properly permitted to cross-examine plaintiff’s expert rebuttal witness about the circumstances surrounding his suspension from chiropractic school for falsely reporting that he had seen patients, a matter relevant to his credibility (see generally Badr v Hogan, 75 NY2d 629, 634 [1990]; Spanier v New York City Tr. Auth., 222 AD2d 219, 220 [1st Dept 1995]). Although the conduct was 30 years ago, the witness opened the door to its relevancy by claiming that his expert knowledge of biomechanics came, in part, from his training as a chiropractor.”

Unfortunately, this case suggests that we look at the quality of the defense experts who testify.  In their former lives, many a defense expert well..somethings are better left unsaid.