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)

Facts

(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.

Analysis

(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.

 

 

A lot here in a Straniere special

New Horizon Surgical Ctr., L.L.C. v Allstate Ins. Co., 2016 NY Slip Op 51124(U)(App. Term 2d Dept. 2016)

(1) “This court has held that chiropractors cannot perform MUA in New York because it is considered a surgical procedure and only physicians may perform. Therefore opinion of chiropractor is not sufficient to establish lack of medical/chiropractic necessity of MUA or surgical center charge.” A judgment awarding plaintiff the principal sum of $7,790.60 was entered pursuant to the decision.

(2) “Dr. Portnoy’s testimony, which the court found credible, demonstrated a factual basis and medical rationale for the determination that there was a lack of medical necessity for any further chiropractic treatment, including the MUA procedure at issue (see Alev Med. Supply, Inc. v[*2]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]) and, by extension, the facility fee which was sought in the claim in question.

(3) “Thus, the burden shifted to plaintiff to present evidence as to why that additional treatment was needed either because plaintiff’s assignor’s condition had changed after the IME or because Dr. Portnoy’s opinion following the IME was erroneous. As plaintiff called no witnesses to rebut defendant’s showing of a lack 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, 2d Dept, 2d & 11th Jud Dists 2006]), the Civil Court should have dismissed the complaint.”

(4)  “In view of the foregoing, we need not decide whether the Civil Court erred in finding that chiropractors cannot perform MUA procedures in New York.”

There are four issues that require discussion.  First,  the Court kicked the issue down the road involving whether a chiropractor can perform MUA in New York.  Second, the Court explicitly held that the facility fee “by extension” would be covered within a lack of medical necessity defense.   Does this mean the CPM fits within a lack of medical necessity defense to surgery?

Third, we have what to me is the most interesting discussion of how to defeat an negative IME.  The Court said Plaintiff bore the burden to prove: “plaintiff’s assignor’s condition had changed after the IME or because Dr. Portnoy’s opinion following the IME was erroneous.”  We said the ebb and flow, wax and wane in collateral estoppel decisions earlier this year.  To me, this has an arbitration angle.  Assume the plaintiff does not have the relished contemporaneous records.  Now, a provider can argue that the condition obviously changed (assuming you believe the IME) and compensation is owing.  And if there is a contemporaneous record, then it is argued that the IME doctor “made an error”.

This case can be dangerous.

 

 

A sighting of “interboard” in action

TC Acupuncture, P.C. v Tri-State Consumer Ins. Co., 2016 NY Slip Op 50978(U)(App. Term 1st Dept. 2016)

(1)”Defendant made a prima facie showing of entitlement to partial summary judgment dismissing plaintiff’s no-fault claims for services rendered July 12, 2010 through August 31, 2010, by demonstrating that it timely and properly denied the claims based on the June 17, 2010 independent medical examination (IME) report of its examining doctor, which set forth a sufficient basis and medical rationale for the conclusion that there was no need for further acupuncture treatment (see AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 136 AD3d 722 [2016]). Plaintiff’s opposition consisting of an attorney’s affirmation unaccompanied by any medical evidence or other competent proof was insufficient to raise a triable issue as to medical necessity (see Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co., 34 Misc 3d 143[A], 2012 NY Slip Op 50102[U][App Term, 1st Dept. 2012]). The assignor’s subjective complaints of pain cannot overcome the objective medical tests detailed in the affirmed report of defendant’s examining doctor (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421 [2016]).”

(2) “Defendant’s position that the charges billed under CPT Code 97039 are not reimbursable because plaintiff is not licensed to provide physical medicine modalities is unpersuasive”

It’s interesting to see a Second and First Department case that I won in the first three cited to cases.  The Arnica case is a killer on the IME cut off cases because it requires the provider to marshal real proof, not manufactured affidavits that at their root say nothing.

The fee schedule issue is correct and yet another iteration of why the commercial EOB systems need to be manually overridden when acupuncture fee schedule issues outside the standard 97810-97814 codes arise.

 

Triable issue of fact as to medical necessity

Five Boro Med. Equip., Inc. v A. Cent. Ins. Co., 2016 NY Slip Op 50412(U)(App. Term 1st Dept. 2016)

(1) The defendant-insurer’s motion for summary judgment dismissing this first-party no-fault action should have been denied. Initially, we note that Civil Court correctly determined that defendant’s documentary submissions were sufficient to establish, prima facie, that its denial of claim forms were timely and properly mailed (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169 [2014]; AutoOne Ins./General Assurance v Eastern Island Med. Care, P.C., ____ AD3d_____, 2016 NY Slip Op 00916 [2016]), and that the peer review reports of defendant’s chiropractor were in admissible form”

(2)  However, the medical affidavit submitted by plaintiff, which specified the assignor’s medical conditions and described the intended benefits of each of the medical supplies at issue, was sufficient to raise a triable issue of fact as to medical necessity [*2](see AutoOne Ins./General Assurance v Eastern Island Med. Care, P.C., supra; Amherst Med. Supply, LLC v A. Cent. Ins. Co., 41 Misc 3d 133[A], 2013 NY Slip Op 51800[U][App Term, 1st Dept. 2013]).

I should have brought suit as “Autoone Ins Co. v. Eastern Island Med. Care, P.C”.  I think I let someone work here name Plaintiff as “Autoone Ins./General Assurance”.  That name is too long.

Substantively, the Court found issues of fact since the affidavit of merit related the supply to the injury.  I am sure it is boilerplate, but look at the industry.

Medical necessity not sustained

Rosenzweig v Mercury Cas. Co., 2016 NY Slip Op 50324(U)(App. Term 2d Dept. 2016)

“In support of its motion, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was a lack of medical necessity for the services at issue. In opposition to defendant’s motion, plaintiff submitted an affidavit 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 Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed, and the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted”

This case was an MUA where the rebuttal was predicated upon an an affidavit showing diminished ROM.  There was no discussion as to the merits of the peer review.  That is what happened here.

Appellate Division opines on lack of medical necessity defense

Arnica Acupuncture PC v Interboro Ins. Co., 2016 NY Slip Op 01434 (1st Dept. 2016)

This was my second foray at the Appellate Division (this time as a defendant and with permission from the Appellate Division) relating to the issue of “lack of medical necessity”.  Specifically, what is necessary to defeat a facially proper IME.

I will be quite frank.  I have seen the Appellate Terms hold that facially insufficient affidavits are sufficient to raise an issue of fact on the issue of medical necessity in opposition to an IME report.  e.

This opinion is important relative to the following language: “Contrary to the Appellate Term’s finding, plaintiff’s supervising acupuncturist’s affidavit failed to raise a triable issue since it was not based on an examination of the patient, nor did it address or rebut the findings of objective medical tests detailed in the sworn report of defendant’s medical expert. The insured’s subjective complaints of pain cannot overcome objective medical tests”

Three points.

(1) The report was not based upon an examination.

The examination does not have to be performed by the affiant.  The examination, however, has to be in the record and in admissible form if a non treating provider wants to use somebody else’s examination.  The issue of “contemporaneous” will have to be litigated another day.

(2) Must rebut finding of objective medical tests

This is where I think many affiants will get caught up.  The recorded examination must itself be based upon sufficient objective evidence.  This “objective basis” I think is where providers may get hung up.  One of the reasons a provider may chose litigation over arbitration is because the provider is not good at documenting treatment, i.e., objective testing.  The objective requirement will prove to be problematic to some providers.

(3) Subjective complaints alone will not fly.

One of the frustrating aspects of arbitration is when the  Applicant harks on the subjective pains as a basis for further treatment or when a doctor in court on cross-examination has to admit that conservative treatment is palliative and will give short term relief to pain.  I would surmise the relevant question becomes whether the treatment will assist in alleviating the documented objective symptomatology.

Would I call this decision ground breaking?  I would say it is the culmination of many years of appeals on this issue.

The issue of peer reviews has not been touched by this case, and I hearken to add that I think a peer review rebuttal is probably a lot easier to put together than an IME rebuttal.  Peer rebuttals can be predicted upon fantasy; IME rebuttals must be predicated upon fact.

 

2106 and a prima facie comment

Pugsley Chiropractic PLLC v Merchants Preferred Ins. Co., 2016 NY Slip Op 50167(U)(App. Term 1st Dept. 2016)

(1) “The report erroneously identified Dr. Perrie as a licensed “physician” (see Paul-Austin v McPherson, 111 AD3d 610 [2013]), and was denominated as an affirmation purportedly made under the authority of CPLR 2106. However, neither a chiropractor nor an acupuncturist may affirm the contents of a medical report pursuant to CPLR 2106″

This is nothing new,

(2) “Plaintiff’s cross motion for summary judgment was properly denied, since it failed to establish, prima facie, that its claims were overdue, i.e., that its claims were not “denied or paid” within the prescribed 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 507 [2015]).”

Now in the Second Department, prima facie proof on motion for summary judgment requires a demonstration either (A) absence of a timely denial; or (B) affirmative proof disproving the proffered defense.

First Department precedent has maintained the traditional rule that proof that a bill was denied or not denied when more than 30-days elapses from submission with proof of non-payment establishes a prima facie case.

I sense in this case the Court required proof that the bills were unpaid in affidavit form.  Yet, a denial would presuppose lack of payment?