The Law Office of Jason Tenenbaum, P.C.

MUA is dangerous

Mollo Chiropractic, PLLC v American Commerce Ins. Co., 2020 NY Slip Op 51548(U)(App. Term 2d Dept. 2020)

“Defendant’s experts’s theory in both his peer review report and at trial was, essentially, that MUA is an “aggressive” and possibly dangerous treatment and should therefore be used very rarely, limited to cases where, among other things, there has first been improvement with a course of traditional chiropractic care, and that the records here were inconsistent and not clear enough to show that this was one of those cases. The court was entitled to credit that testimony. The court also implicitly found that plaintiff’s witness’s testimony was less credible and failed to sufficiently rebut defendant’s expert’s testimony”

Medical necessity?

DRD Med., PC v Global Liberty Ins. Co. of N.Y, 2020 NY Slip Op 50385(U)(App. Term 1st Dept. 2020)

“We agree with Civil Court that the conflicting medical opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the physical therapy treatments underlying plaintiff’s claims”

Amazingly, this is no different than cases where the carrier has won except the affidavit of merit in this case has a bunch of verbiage but no substance

Medical necessity trial gown awry

Parkway Hosp., Inc. v Integon Natl. Ins. Co., 2019 NY Slip Op 51187(U)(App. Term 2d Dept. 2019)

(1) ”  the Civil Court found that defendant’s witness was not credible and awarded judgment to plaintiff in the principal sum of $17,388.68.”

(2) ” At a no-fault trial involving a defense of lack of medical necessity, an insurer has an initial burden to rebut the presumption of medical necessity which attaches to a claim form (see Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Here, the record supports the determination of the Civil Court, based upon its assessment of the credibility of defendant’s expert witness and the proof adduced at trial, that defendant failed to demonstrate that the services rendered were not medically necessary”

I would like to see the transcript on this case.

Surgery peer review is not enough on its face

Allstate Ins. Co. v Buffalo Neurosurgery Group, 2019 NY Slip Op 03749 (2d Dept. 2019)

” This action pursuant to Insurance Law § 5106(c) arises from a motor vehicle accident that occurred on February 6, 2013. Christopher Krull allegedly was injured in the accident, and he underwent spinal fusion surgery performed by P. Jeffrey Lewis of the defendant, Buffalo Neurosurgery Group”

…

“Here, we agree with the Supreme Court’s denial of that branch of the plaintiff’s motion which was for summary judgment on so much of the complaint as, in effect, sought a determination that it was not obligated to pay the defendant no-fault benefits relating to Krull’s surgery, since the surgery was not medically necessary. The peer review reports submitted in support of that branch of the motion failed to demonstrate, prima facie, that the surgery performed on Krull was not medically necessary “

Those surgery peer reviews, unsurprisingly, are insufficient to establish a prima facie entitlement to summary judgment.

What is credible?

Advanced Orthopedics, PLLC v GEICO, 2019 NY Slip Op 50500(U)(1st Dept. 2019)

“The Civil Court dismissed the complaint, finding defendant’s witness to be credible, worthy of belief, and persuasive.”

“In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]). As the record supports the determination of the Civil Court with respect to the lack of medical necessity of the knee surgery, which was based upon its assessment of the credibility of the witnesses, we find no basis to disturb the Civil Court’s finding with respect thereto.”

The intersection of Ins Law 5106 and 5102(d)

Ampofo v Key, 2019 NY Slip Op 00559 (1st Dept. 2019)

“Defendants established prima facie that plaintiff’s claimed right ankle and foot sprains were not serious injuries within the meaning of Insurance Law § 5102(d) through affirmed reports by their orthopedist, who documented normal range of motion (see Hernandez v Adelango Trucking, 89 AD3d 407 [1st Dept 2011]; Whisenant v Farazi, 67 AD3d 535 [1st Dept 2009]). They also submitted an affirmed report by an orthopedic surgeon who performed a no-fault peer review, which noted that plaintiff’s MRI reports showed osteoarthritis and other conditions, and opined that the right ankle arthroscopy performed four months after the collision was not medically necessary or causally related to the accident. “

The no-fault peer review: If properly performed and utilized, it is a death trap. So I found the file online. The peer review was performed by Dr. Westerband. (He actually lost a threshold case as a plaintiff on a PI action). It has a Geico claim number and the vendor is my next door neighbor MedSource National. The medical rationale would not suffice for most arbitrators, but alas the Appellate Division found it persuasive. LOL?

Medical malpractice burdens

Wei Lin v Sang Kim, 2019 NY Slip Op 00161 (2d Dept. 2019)

“The defendant’s expert merely summarized the medical records and certain deposition testimony, and opined in a conclusory manner that the defendant’s treatment of the injured plaintiff did not represent a departure from good and accepted medical practice .”

Interesting choice of terms to come up with as to the failure to make a prima facie burden.

“Not based on an examination”

Forest Drugs v Global Liberty Ins. Co. of N.Y., 2018 NY Slip Op 51708(U)(App. Term 1st Dept. 2018)

“In opposition, the medical affirmation submitted by plaintiff failed to raise a triable issue since it was not based on an examination of the assignor, nor did it meaningfully rebut the findings of defendant’s examining physician”

The First Department dismisses a medical necessity case

Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of N.Y., 2018 NY Slip Op 51358(U)(App. Term 1st Dept. 2018)

In opposition, the affidavit of plaintiff’s principal failed to raise a triable issue since it was not based on an examination of the assignor, nor did it meaningfully rebut the findings of defendant’s examining acupuncturist/chiropractor, including the normal results of the range of motion testing (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421 [2016]; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A]). Nor did the assignor’s subjective complaints of pain overcome the objective medical tests detailed in the IME report (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421; TC Acupuncture, P.C. v Tri-State Consumer Ins. Co., 52 Misc 3d 131[A], 2016 NY Slip Op 50978[U] [App Term, 1st Dept 2016]).”

The test is whether there was an examination of the Assignor that did not have normal findings.  The open question here is the time period of when this examination must take place.  In this case, there was an examination that pre-dated the IME by 2-3 months.  This was not sufficient.  There was also scribbled treatment notes, but that will not carry the day.  Also, do not mistake this case for the “contemporaneous” fallacy that has plagued AAA arbitrators when sizing up medical evidence.

My sense is when all the leaves on this issue are shaken out (there is more shaking going on than you are probably aware of), arbitrators may be stuck engaging in the painful task of looking at blocks of post IME treatment and determining whether they are appropriate once the presumption of medical necessity in the first instance is rebutted.   That is, the Charles Sloan and Burt Feilich rule may very well be the correct statements of law.

MUA trial victory

 

The new fee schedule notwithstanding, the question here is whether MUA treatments were necessary.  You saw part of the typical play by play in the MUA world.

Def witness

  • “Defendant’s witness, a chiropractor who had prepared the peer review report upon which defendant had relied…that the assignor had received standard chiropractic treatment for 10 weeks before the MUA treatments commenced.”
  • “The witness also stated that there was no indication that the assignor had not been responding to the chiropractic treatments and that, in the witness’s opinion, the MUA treatments had been done prematurely and were not medically necessary. Defendant’s witness further testified that he “took issue with” the lack of second opinions for the MUAs.”

Plaintiff witness

  • Plaintiff’s rebuttal witness, the examining chiropractor, testified that, because the conservative care which the assignor had received for 10 weeks had resulted in only minimal improvement, he had recommended MUA treatments.
  • Plaintiff’s witness testified that, based upon his own examinations of the assignor following each of the MUA treatments and his review of medical records, the assignor’s condition had improved because of the MUA treatments

District Court

  • [t]he manipulation itself appears to be warranted,” and awarded judgment to plaintiff. “

Appellate Term

Affirmed

What I always find helpful with the MUA cases are the MRI findings, EMG findings and Dr. Cerf is quite emphatic on data reliability and use of the outcome assessment test in formulating a treatment plan.  The question here and perhaps the linchpin is what are “minimal improvements”  and were some of the other treatment notes looked at?

The other thing that is unfortunate is that examinations prior and post MUA to determine whether an examination was done often do not occur.  This would require an EUO to discern of course.  This case, at best, looked a prototypical battle of the experts and plaintiff won. Absent some record gaffe, the order would invariably affirmed.