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?


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


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


(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?



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.


Run of the mill medical necessity case

Throgs Neck Multicare, P.C. v State Farm Mut. Auto. Ins. Co., 2015 NY Slip Op 51756(U)(App. Term 2d Dept. 2015)

The rebuttal affidavit was pretty poor.  Yet, I would note that except for the amount of paragraphs, the rebuttal was equally as deficient as that in another recent case.  In South Nassau , the Court found a triable issue of fact.  Here, the Court non-suited Plaintiff.  Sometimes, it really is a roll of the dice with how the Court’s will rule on particular deficient affidavits of merit.

Lost to Dr. Bhatt

Ap Orthopedic & Rehabilitation, P.C. v Allstate Ins. Co., 2015 NY Slip Op 51656(U)(App. Term 2d Dept. 2015)

“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, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

In the present case, the record supports the determination of the Civil Court, based upon its assessment of the credibility of defendant’s witness and the proof adduced at trial, that defendant failed to demonstrate that the services rendered were not medically necessary. As we find no basis to disturb the Civil Court’s findings, the judgment, insofar as appealed from, is affirmed.”

A somewhat pro-defendant judge ruled in favor of the medical provider; the medical provider did not have a rebuttal; the Appellate Term affirmed.  Not good.

Medical necessity finding not sufficient upon search of record

Healing Art Acupuncture, P.C. v Allstate Ins. Co., 2015 NY Slip Op 51670(U)(App. Term 2d Dept. 2015)

“While the court has the power to award summary judgment to a nonmoving party predicated upon a motion for that relief by another party (see Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]), here the issue of medical necessity was not the subject of plaintiff’s motion for summary judgment (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). As a result, the court improvidently exercised its discretion when it searched the record and awarded defendant summary judgment dismissing the complaint insofar as it sought to recover for services rendered after November 20, 2009″

Search of the record was inappropriate.  It makes sense in this case as Plaintiff has no reason to believe (s) he had to proffer sufficient evidence to show the services were medically necessary,

The Reply that introduced a proper reply was itself proper

SAL Med., P.C. v Clarendon Natl. Ins. Co., 2015 NY Slip Op 51449(U)(App. Term 2d Dept. 2015)

“The defect in one of the peer review reports submitted by defendant with its original motion papers, in that it did not bear a signature, was properly and timely remedied when the identical peer review report, this time bearing a signature, was submitted by defendant in its reply papers, and there is no indication that plaintiff was prejudiced in opposing defendant’s motion by this defect in form”

Unsworn letters not enough

Innovative MR Imaging, P.C. v Praetorian Ins. Co., 2015 NY Slip Op 51402(U)(App. Term 1st Dept. 2015)

“In opposition to defendant’s motion, plaintiff submitted two letters of medical necessity. However, as neither letter of medical necessity was sworn or even signed, they were of no probative value (see Rivers v Birnbaum, 102 AD3d 26, 45 [2012]). As a result, defendant’s prima facie showing that the services were not medically necessary was unrebutted by plaintiff.”

3212(f) – motion denied

IDF Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2015 NY Slip Op 51213(U)(App. Term 2d Dept. 2015)

“The Civil Court held that, since defendant had annexed its discovery responses to its reply papers, plaintiff’s cross motion to compel disclosure was moot and that there was an issue of fact as to medical necessity because defendant had failed to provide, in a timely manner, the medical records which plaintiff had sought, so that plaintiff could respond to the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s first cause of action.”

“In opposition to defendant’s motion, and in support of its cross motion to compel discovery, plaintiff demonstrated that it had requested from defendant, but had not received in time to oppose defendant’s motion (see CPLR 3212 [f]), the peer review report, the complete set of medical documentation relating to the assignor received by defendant and the complete set of medical documentation provided to defendant’s peer reviewer. In light of the foregoing, defendant is not entitled to summary judgment dismissing plaintiff’s first cause of action”

In this case, the penalty for ambushing the Plaintiff with late discovery is to essentially lost the medical necessity branch of the motion.

Depositions of medical providers

Farshad D. Hannanian, M.D., P.C. v Allstate Ins. Co., 2015 NY Slip Op 51133(U)(App. Term 2d Dept. 2015)

“In this action by a provider to recover assigned first-party no-fault benefits, six days after plaintiff served a motion seeking summary judgment, defendant served a notice of deposition of plaintiff’s assignor’s treating provider. Plaintiff timely objected, arguing, among other things, that disclosure was stayed pursuant to CPLR 3214 (b). Immediately after plaintiff’s assignor’s treating provider failed to appear for the deposition, defendant moved to compel plaintiff to, among other things, produce plaintiff’s assignor’s treating provider for a deposition. Plaintiff cross-moved, inter alia, for a protective order pursuant to CPLR 3013 and to strike defendant’s notice to take deposition on the ground that the notice to take deposition was palpably improper. Insofar as is relevant to this appeal, by order entered January 7, 2014, the Civil Court granted the branch of defendant’s motion seeking to compel plaintiff’s treating provider to appear for a deposition and denied plaintiff’s cross motion. This appeal by plaintiff ensued.”

“CPLR 3101 (a) provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Parties to an action are entitled to reasonable discovery “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see Traditional Acupuncture, P.C. v State Farm Ins. Co., 24 Misc 3d 129[A], 2009 NY Slip Op 51335[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Where, as here, defendant is defending this action on the ground that the services rendered lacked medical necessity, the court’s determination that a deposition of plaintiff’s assignor’s treating provider was material and necessary to defendant’s defense was proper”(see Great Health Care Chiropractic, P.C. v Interboro Ins. Co., 41 Misc 3d 130[A], 2013 NY Slip Op 51737[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see also CPLR 3214 [b] [court may grant discovery notwithstanding service of a summary judgment motion”

Again, another division between the knee jerk notice of deposition that failed in Ralph Medical and the full breadth of disclosure that the Appellate Term Second Department will allow.