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 421TC 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.

Why “contemporaneous” medical inquiry should not be the loadstar of medical necessity determinations

Hayes v Gaceur, 2018 NY Slip Op 04080 (1st Dept. 2018)

“In opposition, however, plaintiff raised an issue of fact as to her claimed cervical spine, shoulder and left knee injuries through the report of her treating orthopedic surgeon. The physician examined plaintiff the day after the accident and on several occasions thereafter. He found limitations in range of motion of her cervical spine the day after the accident and on recent examination; he examined plaintiff’s shoulders and left knee within a month after the accident and found limitations in range of motion at the initial examination and recently (see Perl v Meher, 18 NY3d 208, 218 [2011] [“Injuries can become significantly more or less severe as time passes”]”

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”