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?

Scope of testimony regarding “deviations”

Bongiovanni v Cavagnuolo, 2016 NY Slip Op 00638 (2d Dept. 2016)

If we are going to work off the assumption that lack of medical necessity in the peer review sense may involve deviation of a standard of care of the services that a healthcare practitioner provides, then this case has merit.  I would note that the Appellate Courts have always phrased lack of medical necessity as  requiring a “factual basis” and “medical rationale”.  I tend to find “deviation” and “departures” (medical malpractice jargon) to be disingenuous in the no fault context.  I get upset when I see no-fault arbitrators blindly use these terms, considering most of them never tried a medical malpractice case.

Here is what I think of the conclusion part of a stock basic boilerplate examination of a peer doctor should look like:

“Doctor, you testified that upon a review of the records that the patient had a tear in the medical condoyle of her right knee?

Yes

“Doctor, you testified that physical therapy and injections should be tried and exhausted prior to the performance of an arthroscopic procedure”

Yes

Doctor  you testified this patient had surgery prior to an adequate period of conservative care?

Yes

(Bonus question) Doctor, there is literature that stands for this proposition of fact?

Yes, the journal on operate and ask questions later is on point.

So, it is your opinion within a reasonable degree of medical certainty that the surgery was not necessary?

Yes.

Note: in this back and forth, did you hear “deviations” or “departures”?   What you heard is some standard of care or reason for finding the procedure should not have been done was not met.  Was there are a departure or a deviation?  I am not going that far; the better view is that you can intimate that doctor defense gave you a factual basis (review reports) and medical rationale (not enough treatment) for finding the surgery was not appropriate.  A departure or deviation intimates that early surgery goes against accepted norms.  That was not accomplished here; clearly the surgery could have led to the same or better outcome as not performing surgery.  That is not relevant – the question is whether the opinion that it was inappropriate to operate was supported by a factual basis and medical rationale.

The level of proof regarding a deviation or departure is quite  exacting; this proof is not necessary in the within no-fault case and should not be required.

But assume you want go down this road.  Here are your two questions with a conclusion:

“So doctor, in this case patient had 1 month of PT, no injections and was operated within 2 months. Would you state within a reasonable degree of medical certainty whether this a deviation of the standard of care that a orthopedic surgeon would normally adhere to?”

ANSWER: ____

“And doctor again assume this case patient had 1 month of PT, no injections and was operated within 2 months.  Would you state within a reasonable degree of medical certainty this would be a departure of the standard of care to which an orthopedist should adhere?”

“And therefore, it is your opinion that the surgery that was performed was not medically necessary?”

By the way: I will not ask the first two departure questions because I am not going to ask a doctor in a no-fault matter to put on the record that another doctor committed medical malpractice.  No way.  And by the way, you should not either.

Aw to the case I cited: Here are three snippets you should pay attention to:

(1) “So, too, chiropractic malpractice actions require proof that the defendant chiropractor deviated or departed from the accepted community standards of chiropractic practice, and that such deviation or departure was a proximate cause of the plaintiff’s injuries”

(2) “Physicians offering opinions in medical, dental, podiatric, chiropractic, or other specialty malpractice actions must establish their credentials in order for their expert opinions to be considered by courts. They do so by being specialists in the field that is the subject of the action, or if not specialists in the same field, then by possessing the requisite skill, training, education, knowledge, or experience from which it can be assumed that the opinion rendered is reliable. Thus, when a physician offers an expert opinion outside of his or her specialization, a foundation must be laid tending to support the reliability of the opinion rendered”

(3) “Here, the opinions of Dr. Meyer and Dr. Coyne would not be admissible on the issue of the defendant’s alleged deviation or departure from the standard of chiropractic care, as neither physician indicated any familiarity with the standards of chiropractic practice.”

Trial de novo summary judgment motion appealed

AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 2016 NY Slip Op 00916 (2d Dept. 2016)

The reason I appealed

“Contrary to the Supreme Court’s determination, the affidavit of the plaintiff’s branch manager, submitted by the plaintiff in support of its motion for summary judgment, was sufficient to establish, prima facie, that its denial of claim forms were timely mailed in accordance with the plaintiff’s standard and appropriate office mailing practices and procedures (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169; cf. Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051). In opposition, the defendant failed to raise a triable issue of fact as to the timeliness of the denial of claim.”

Triable issue of fact – medical necessity

The medical necessity issue (first tine the Appellate Division, Second Department actually dealt with a Pan Chiro issue)

“Furthermore, with respect to the medical necessity of the services provided by the defendant, the plaintiff submitted affirmed medical evaluations which made a prima facie showing [*2]that the services at issue were not medically necessary (see Gaetane Physical Therapy, P.C. v Great N. Ins. Co., 47 Misc 3d 145[A], 2015 NY Slip Op 50698[U] [App Term, 2d Dept, 9th & 10th Jud Dists]; Dr. Todd Goldman, D.C., P.C. v Kemper Cas. Ins. Co., 36 Misc 3d 153[A], 2012 NY Slip Op 51713[U] [App Term, 2d Dept, 11th & 13th Jud Dists]).

However, in opposition to the motion, the defendants submitted affidavits and various medical records relating to Coyotl’s treatment which were sufficient to raise a triable issue of fact as to the necessity of that treatment (see Westcan Chiropractic, P.C. v Hertz Claim Mgt., 48 Misc 3d 133[A], 2015 NY Slip Op 51066[U] [App Term, 2d Dept, 9th & 10th Jud Dists]; Lenox Hill Radiology & Mia, P.C. v Great N. Ins. Co., 47 Misc 3d 143[A], 2015 NY Slip Op 50680[U] [App Term, 2d Dept, 9th & 10th Jud Dists]; Fine Healing Acupuncture, P.C. v Country-Wide Ins. Co., 33 Misc 3d 55 [App Term, 2d Dept]).

Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment, as further proceedings are necessary to determine the issue of the medical necessity of the treatment rendered to Coyotl.”

Partial summary judgment

“[f]urther proceedings are necessary to determine the issue of the medical necessity of the treatment rendered to Coyotl.”

I do not think I should have had costs awarded against me.  I accomplished what needed to get done.

Much ado over something?

Dayan v Allstate Ins. Co., 2015 NY Slip Op 51751(U)(App. Term 2d Dept. 2015)

At issue in this case is which party bears the burden of proving at trial the medical necessity or the lack of medical necessity of the assignor’s right-shoulder surgery, i.e., whether the injury was causally related to the accident in question. This court has previously stated that where, in rebutting a presumption of medical necessity which attaches to a claim form, an insurer is [*2]successful in satisfying its burden at trial of demonstrating a lack of medical necessity, “it is ultimately plaintiff who must prove, by a preponderance of the evidence, that the services or supplies were medically necessary”

Here, the trial court went wrong when the following occurred: “The court further stated that “all things being equal,” it must find in favor of plaintiff, and, thus, the court awarded plaintiff the principal sum of $8,939.66.

Well, all things are not equal.  There is a presumption (an inference that must be rebutted) and sufficient evidence must be adduced to rebut the presumption.  Then, and only then, must the medical provider tender admissible proof to satisfy its ultimate burden, i.e., proof that the service is medically necessary, etc.