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.

The peer review and its entry into evidence?

Radiology Today, P.C. v Geico Ins. Co., 2017 NY Slip Op 51768(U)(App. Term 2d Dept. 2017)

(1) In this action by a provider to recover assigned first-party no-fault benefits for services it had provided to its assignor, a nonjury trial was held on the first cause of action, limited to defendant’s defense of lack of medical necessity (see CPLR 3212 [g]). Prior to defendant calling any witnesses, the Civil Court indicated that, as defendant would not be able to admit into evidence the peer review report upon which the denial of claim had been based “for the truth of what is in there,” defendant would not be able to meet its “burden.”[FN1] The court disagreed with [*2]defendant’s position that a “substitute doctor” could testify without the peer review report being admitted into evidence and directed a verdict in favor of plaintiff.

(2) “Contrary to the apparent holding of the Civil Court, an insurer cannot use a peer review report at trial for its “truth,” i.e., to prove the insurer’s defense of lack of medical necessity (see Alev Med. Supply, Inc. v Government Empls. Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24, 26 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Indeed, the “admission of a peer review report into evidence as part of a defendant’s proof of lack of medical necessity may constitute impermissible bolstering of its expert’s testimony” (A-Quality Med. Supply, 39 Misc 3d at 26). While an insurer’s expert witness’s testimony should be limited to the basis for the denial as set forth in the peer review report (see e.g. Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), “it is plaintiff’s burden to make an appropriate objection in the event the testimony goes beyond the basis for the denial and, if necessary, produce the peer review report”

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.


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.

New trial with a twist on a medical necessity claim

Promed Orthocare Supply, Inc. v Geico Ins. Co., 2017 NY Slip Op 51264(U)(App. Term 1st Dept. 2017)

“The Civil Court erred in refusing to consider expert testimony from the witness who did not prepare the peer review report on the ground that the peer review report was not admitted into evidence, and in indicating that testimony from the author of the peer review report was required. Testimony of an expert witness who did not prepare the peer review report upon which an insurer’s denial of claim was based can be used to prove a lack of medical necessity (see e.g. Metropolitan Med. Supplies, LLC v GEICO Ins. Co., 36 Misc 3d 141[A], 2012 NY Slip Op 51490[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Moreover, at trial, an insurer cannot use a peer review report to prove its defense of lack of medical necessity (see e.g. A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). While the expert witness’s testimony should be limited to the basis for the denial as set forth in the peer review report (e.g. Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), it is plaintiff’s burden to make an appropriate objection in the event the testimony goes beyond the basis for the denial and, if necessary, produce the peer review report.”

Here are some interesting rules (enunciated again).  First, the peer report never goes into evidence. Second, the expert (whomever it is) can say what (s)he wants subject to an objection that is oversteps the utilization review.  Third, the Court cannot act sua sponte.

Functional ATIC/ medial necessity and fee schedule defense susbstantiated

Jaga Med. Servs., P.C. v American Tr. Ins. Co., 2017 NY Slip Op 50954(U)(App. Term 2d Dept. 2017)

(1) “In opposition to those branches of defendant’s cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).”

(2) “Contrary to plaintiff’s contention, the affidavit executed by defendant’s expert professional coder, submitted in support of the branches of defendant’s cross motion seeking summary judgment dismissing the first, second and fifth causes of action, established that defendant had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services at issue in these causes of action (see e.g. Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).”

Interesting observation from the motion papers.

(1) Peer review involved EMG/NCV: The opposition affidavit did not seem bad.   While it said a lot, however, it was totally not responsive to the peer report.

(2) Expert analysis involved ROM and MMT: Payable  per extremity and trunk.   The review again recommended less than what was actually paid.  There was no fee schedule opposition.

Substantiation of diminishment of ROM

Rose v Tall, 2017 NY Slip Op 02947 (1st Dept. 2017)

“However, his report is insufficient to raise a triable issue of fact because, on his initial examination, he found normal to near-normal range of motion, which did not qualify as a serious injury (see Eisenberg v Guzman, 101 AD3d 505 [1st Dept 2012]). Furthermore, on a more recent examination, that neurologist found a deficit in one plane and normal to near-normal range of motion in all other planes, and failed to explain the inconsistencies between his earlier findings of almost full range of motion and his present findings of additional deficits, rendering his opinion speculative (see Santos v Perez, 107 AD3d 572, 574 [1st Dept 2013]; Colon v Torres, 106 AD3d 458 [1st Dept 2013]). Plaintiff’s showing of relatively minor limitations was insufficient to sustain a serious injury claim”

How does one reconcile (1) Need for objective evidence to prove medical necessity of services; (2) A patients conditions waves and wanes; and (3) There is need to explain inconsistencies between patients initial and subsequent conditions.

5102(d) litigation: Plaintiff’s own records non-suit him

Khanfour v Nayem, 2017 NY Slip Op 01637 (1st Dept. 2017)

The prior medical conditions of Plaintiff’s looking to beat the threshold get it their way, many times.  This case is a great example of causal relationship gone awry

Cervical spine

“However, plaintiff’s earlier treating physician acknowledged that plaintiff’s own X-ray report revealed multilevel “disc disease” and “bilateral foraminal impingement due to foraminal osteophytes.” Since plaintiff’s own medical records provided evidence of preexisting degenerative changes, his pain management specialist’s conclusory opinion, lacking any medical basis, was insufficient to raise an issue of fact since it failed to explain how the accident, rather than the preexisting disc disease and osteophytes, could have been the cause of plaintiff’s cervical spine condition”

Lumbar spine

However, plaintiff’s postaccident treatment records show that he had normal or near normal range of motion within two months after the accident, which is insufficient to support a serious injury claim (see Gaddy v Eyler, 79 NY2d 955 [1992]). Three years later, plaintiff’s pain management specialist found arguably significant limitations in [*2]lumbar spine range of motion, but failed to reconcile his findings with the earlier conflicting findings, and defendants are therefore entitled to summary judgement.

As to the lumbar spine, this actually conflicts (somewhat) with the no-fault case of Huntington Med. Plaza, P.C. v. Travelers Indem. Co., 43 Misc. 3d 129(A) (App. Term 2d Dept. 2014): “As the Civil Court stated, one of those doctors specifically noted that a person’s condition can “wax and wane” after a motor vehicle accident and that, therefore, a finding that the treatments at issue in the prior cases were not medically necessary does not conclusively prove that the treatments at issue in this case were not medically necessary.”

The analogy being that if the Claimant is deemed fine, there needs to be more of an explanation then “good days and bad days” to escape the finding of lack of causation (assuming resolved injuries).  I never liked Huntinton/Travelers for the reason that once its prima facie proven that the injury is resolved, the “good day/bad day” analogy is weak.


Verdict in favor of Plaintiff sustained

Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of N.Y., 2016 NY Slip Op 51815(U) (1st Dept. 2016)


(1) At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the sole issue was the medical necessity of the MRIs of plaintiff’s assignor’s cervical and thoracic spines. The only witness was defendant’s doctor, a board-certified orthopedic surgeon with 30 years of experience, who also “write[s] papers, and give[s] lectures.

(2) The Civil Court, finding that defendant’s medical witness was not qualified as an expert and, in any event, that the witness’s testimony was not credible, awarded judgment in favor of plaintiff in the principal sum of $1,839.34.


(1) The fact that defendant’s witness was an orthopedic surgeon and the MRIs at issue were prescribed by a doctor whose specialty is physical medicine and rehabilitation goes to the weight to be given to the testimony and not, contrary to the Civil Court’s determination, to the witness’s competency to testify as an expert

(2) “However, we find no basis to disturb the Civil Court’s finding that the witness’s testimony was not credible.”

My thoughts

The most recent theme running through these medical necessity trials is that the doctor is (or is not) credible.  Upon the fact-finder making that threshold finding, the appeal will sink or swim.


Default granted but summary judgment motion denied

Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 2016 NY Slip Op 06680 (2d Dept. 2016)

(1) “Here, the Supreme Court found that the plaintiff submitted proof of service of the summons and complaint upon Gorum (seeBusiness Corporation Law § 306[b][i]; CPLR 3215[g][4][i]) and that Gorum had not answered or appeared in this action, thereby admitting all traversable allegations (see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730). However, the court erred in denying that branch of the plaintiff’s motion which was for leave to enter a default judgment against Gorum on the basis that its expert’s affirmation, in the form of a peer review, did not have an original signature (see CPLR 2101[e]; Rechler Equity B-1, LLC v AKR Corp., 98 AD3d 496, 497; Billingy v Blagrove, 84 AD3d 848, 849; Campbell v Johnson, 264 AD2d 461, 461). Further, the plaintiff’s expert’s affirmed peer review demonstrated facts constituting the cause of action asserted against Gorum (see Woodson v Mendon Leasing Corp., 100 NY2d at 71). Thus, the court should have granted the plaintiff leave to enter a default judgment against Gorum.”

The “original signature” is a relic of the 1970s and 1980s.  Certain judges fail to appreciate that a copy or a holographic signature (and electronic signature in the 1st Department or electronic signature with authentication in the Second Department) are sufficient to allow the document to be considered.

(2)  “The peer review reports and medical records submitted in support of this motion failed to demonstrate as a matter of law that the surgery performed by Diwan on Souffront was not medically necessary.”

Admittedly, this is the standard type of peer reports that  the insurance carriers utilize to show lack of medical appropriateness.   It is for this reason that surgery peer reviews necessitate expert testimony.  My hope is one day, the industry will compel the orthopedists to fill in the gaps in the peer reviews so that the can stand on their own two feet.

MUA with Straniere: Part 2

New Horizon Surgical Ctr., L.L.C. v Allstate Ins. Co., 2016 NY Slip Op 51125(U)(App. Term 2d Dept. 2016)

(1) “The sole witness to testify at trial was defendant’s witness, Dr. Paul Priolo, a licensed chiropractor, certified in MUA. Plaintiff stipulated to Dr. Priolo’s “credentials [and] expertise.” Dr. Priolo testified that he had concluded, based upon his review of Dr. Snitkoff’s peer review report and the documentation upon which the peer review report relied, that there was a lack of medical necessity for the MUA procedure.”

(2) The issue in this case is not whether chiropractors are permitted to perform MUA, but rather whether defendant, through the testimony of its expert witness, satisfied its burden of establishing a lack of medical necessity and, if it did so, whether plaintiff proved, by a preponderance of the evidence, that the services rendered were medically necessary (see Park Slope Med. & Surgical Supply v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

(3) Plaintiff stipulated to Dr. Priolo’s expertise, and there is no indication in the record that Dr. Priolo was not competent to assert his opinion as to the lack of medical necessity of the procedure performed (see Channel Chiropractic, P.C. v Country-Wide Ins. Co., 38 AD3d 294 [2007]; see also Patil v Countrywide Ins. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50306[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006]) and, by extension, the facility fee which was sought in the claim in question.

(4) Dr. Priolo’s testimony, which the court found credible, demonstrated a factual basis and medical rationale for his determination that there was no medical necessity for the services at issue (see Alev Med. Supply, Inc. v Government Employees Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As plaintiff called no witnesses to rebut Dr. Priolo’s testimony (see West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), we disagree with the Civil Court’s ultimate determination in favor of plaintiff and find that the Civil Court should have dismissed the complaint.

My last post discussed the observations involving the negative IME.  This is interesting on the peer review side since the Court cited to Channel Chiropractic and Patil.  Those are the nurse peer reviews that with a proper foundation can be deemed sufficient to lay a foundation for determining medical appropriateness of services.  This means a peer reviewer who is not certified may not be able to give an opinion on lack of medical necessity of MUA services.  This would, of course, run counter to that Allstate case that came out of the Appellate Term, First Department stating that it goes to the weight of the testimony.  Here, lack of training goes straight to admissibility.