Lack of medical necessity defense upheld

Five Boro Med. Equip., Inc. v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 51888(U)(App. Term 1st Dept. 2014)

“Plaintiff’s opposing submission, consisting of an attorney’s affirmation unaccompanied by any medical evidence or other competent proof, was insufficient to raise a triable issue (see Munoz v Hollingsworth, 18 AD3d 278, 279 [2005]; CPT Med. Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). Plaintiff’s objections to the peer review doctor’s qualifications “go to the weight and not the admissibility of her opinion” (Solano v Ronak Med. Care, 114 AD3d 592 [2014]).”

Certain judges often play the qualification card.  It works when dealing with nurses and fee schedule coders.  It does not work with peer review doctors, unless the service being reviewed is of a sub-specialty that the Geffner rule would apply.

Another Geffner sighting

Tsimbler v Fell, 2014 NY Slip Op 08982 (2d Dept. 2014)

“In opposition, the plaintiff submitted the affidavit of a physician specializing in the field of internal medicine, which did not state whether the physician had any specific training or expertise in ophthalmology, or particularized knowledge as to the treatment of glaucoma. Moreover, the affidavit did not indicate that the physician had familiarized himself with the relevant literature or otherwise set forth how he was, or became, familiar with the applicable standards of care in this specialized area of practice. ” While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable'” (Behar v Coren, 21 AD3d 1045, 1046-1047, quoting Postlethwaite v United Health Servs. Hosps., Inc., 5 AD3d 892, 895; see Shectman v Wilson, 68 AD3d 848, 849). Thus, where a physician opines outside of his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered (see Shectman v Wilson, 68 AD3d at 850; Geffner v North Shore Univ Hosp., 57 AD3d 839Bjorke v Rubenstein, 53 AD3d 519, 520; Glazer v Lee, 51 AD3d 970, 971; Mustello v Berg, 44 AD3d 1018, 1019; Behar v Coren, 21 AD3d at 1046-1047). ”

The general rule is that a physician can opine on anything within the gambit of medicine. Yet, Geffner carved out an exception for what I can only conceive as areas within certain specialized areas of medicine, where the physician’s recitation of education and expertise has to be akin to that of a nurse opining on the service of a physician.  This of course runs counter to the DFS opinion letter (when they used to write opinion letters) which states a physician can comment on out of specialty services.

Mailing and the first time “objective” has landed in a medical rational case

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co., 2014 NY Slip Op 51766(U)(App. Term 1st Dept. 2014)

(1) The joy of mailing vendors

“In this regard, the affidavit submitted by an employee of Farmers Insurance Exchange, defendant’s claims administrator, failed to adequately describe its office mailing procedures (see Matter of Lumbermens Mut. Cas. Co. [Collins], 135 AD2d 373, 375 [1987]), merely stating that items placed in its “mail bin” are picked up by a nonparty entity – Pitney Bowes Services, Inc. (“Pitney Bowes”) – which brings the items on a daily basis to the post office. The affiant professed no personal knowledge of, nor did she attempt to describe, the procedures utilized by Pitney Bowes to assure timely and proper delivery”

(2) On medical necessity

“Moreover, even beyond defendant’s shortcomings in proof concerning the mailing issue, the report of defendant’s peer review acupuncturist failed to set forth sufficient facts or medical rationale for his stated conclusion that further acupuncture treatment of plaintiff’s assignor was not medically necessary. That the assignor may have subjectively reported during the course of the peer review examination that she “feels worse” after three months of acupuncture treatment did not, by itself and without any objective medical explanation by the peer reviewer, eliminate all triable issues regarding the medical necessity of continued acupuncture treatment.”

This one is interesting because the Court has finally held that an objective medical explanation is necessary to support a medical necessity defense or, contrariwise, prove that there is a medical rationale for further treatment in opposition to an insurance carrier’s examination.

Peer review of acupuncture not substantitated

Shirom Acupuncture, P.C. v Kemper Independence Ins. Co., 2014 NY Slip Op 51407(U)(App. Term 1st Dept. 2014)

“We agree that the peer review report relied upon by the defendant-insurer was insufficient to establish, as a matter of law, that the acupuncture services underlying plaintiff’s $2,175 no-fault claim lacked medical necessity. The report addressed the medical necessity of acupuncture services rendered to plaintiff’s assignor during a time frame prior to that covered by the bills sued upon here, with defendant’s peer reviewer basing his finding of a lack of medical necessity on narrow grounds, viz., the perceived vagueness of the provider’s initial acupuncture report and treatment notes. In such form, and since defendant’s peer reviewer stopped short of concluding that the assignor’s medical condition could never be shown to warrant further acupuncture treatments, his report cannot be read so broadly as to justify, without more, the denial of any and all future claims for acupuncture services rendered to the assignor. Thus, summary judgment dismissal of this claim was properly withheld.”

This one is interesting.  How many acupuncture cases have you seen where the insurance carrier denied all billing based upon a prior peer review?   I am surprised this was taken on appeal.  But what is interesting is that a peer review for an initial set of services can state broadly that all further services would not be medically necessary and the peer would (it appears) satisfy the initial burden of persuasion.

This case can definitely be used (with a proper peer review) to substantiate the denial of all pre-IME conservative therapeutic service.

Medical necessity reversals

Promed Durable Equip., Inc. v GEICO Ins., 2014 NY Slip Op 51262(U)(App. Term 2d Dept. 2014)

Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.)

“Defendant also an nexed to its motion papers two affirmed peer review reports, each of which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the supplies at issue. Plaintiff did not rebut defendant’s prima facie showing. Accordingly, the order is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted”

Quality Health Prods., Inc. v Geico Ins. Co., 2014 NY Slip Op 51268(U)(App. Term 2d Dept. 2014)

Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.)

“In opposition to the cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review reports (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).”

** I am sure the number would be higher if everybody appealed this judge’s orders.

Stipulated to defeat.

All-In-One Medical Care, P.C. v. Government Employees Ins. Co., 2014 N.Y. Slip Op. 24070 (Dis. Ct. Nassau Co. 2014)

This is what happens when we all stip to everything.  Now, we end up in Court with the usual arbitration paradigm where a Plaintiff that provides contemporaneous treatment notes defeats the IME examination and testimony therein.  This is reality.

First, at trial, Court finds Dr. Emmanuel’s testimony was sufficient to estblish a prima facie showing that further services lack medical appropriateness.  Burden now shifts.

“In the face of such showing by defendant, plaintiff attempted to meet its burden through submission of post-IME medical records. “Follow-up progress notes” from Dr. Jean Claude Demetrius document monthly post-IME evaluations of Santo Fernandez that were performed between November 2010 and February 2011. In his January 11, 2011 report, for example, Dr. Demetrius notes that the patient’s pain course “has been moderately improved with current physical therapy and acupuncture” but “still has significant pain in neck and lower back with radiating pain and paresthesia to the both upper and lower extremities.” In addition, Mr. Fernandez continued to complain about shoulder pain. Upon examination of the patient’s shoulders, Dr. Demetrius found mild tenderness in the right shoulder, severe tenderness in the left shoulder, and decreased range of motion in the upper extremities.” [Commentary: This is what causes the carrier to suffer defeat in arbitration]

“Based upon these findings and other documented examination results, Dr. Dimetrius’s “diagnostic impression” included cervical and lumbar strain-sprain, cervical and lumbar discogenic disease/radiculopathy, and right/left shoulder joint pain secondary to contusion and ligament/tendon tear. His “diagnostic plan” called for “[c]ontinued physical therapy” and a follow-up re-evaluation in 4-6 weeks. Similar findings and recommendations were made in his earlier and later reports.”

At this point, the Court discusses the fact that these notes would not come into evidence absent a proper foundation, and cites to Wilson v. Boden.  The Court is correct on this score.  But unobjected to hearsay is competent evidence, and I will cite to a certain Plaintiff attorney who in the middle to later 2000s reminded me of that when I used to hang out in Civil Court.

As to a missing witness instruction, this is inappropriate since the party for whom this charge will be sougth has to be on notice before he rests his case that this will be charged to the finder of fact.  Defendant, presumably knowing Plaintiff’s witness list, did not put the Plaintiff known as soon as possible that it would seek a witness charge should Plaintiff not bring a witness to trial.  Also, if you do not ask for a missing witness charge, you do not get it.  On this record, the Court inappropriately went down a road that was never opened for traffic.

Can treatment notes at trial win the day for Plaintiff when the judge fully credited Defendant’s expert’s testimony?  Probably not.  This is identical to the line of cases where it was held that a peer report allowed into evidence is insufficient to satisfy a party’s prima facie showing of lack of medical appropriateness since medical necessity can only be discerned through live testimony.

But, I think if Defendant allowed these into evidence, then the Court (if not constrained by Appellate Term precedent that I think is wrong) had every right to consider these reports.  Furthermore, since there was no objection to the reports coming into evidence nor was an adverse inference sought, the Court but for Appellate Term precedent to the contrary was justified in its findings of fact and conclusions of law.

However, given the state of law, Defendant should have won.  Interestingly, these are the kinds of case that should be thrown into arbitration.  Typed up monthly examination notes contemporaneous to the IME, along with (I am guessing) positive nerve tests and MRI’s to corroborate the functional and structural disabilities demonstrated on the clinical examination.



Peer review testimony is admissible and sufficient

All Borough Group Med. Supply, Inc. v Unitrin Advantage Ins. Co., 2014 NY Slip Op 50462(U)(App. Term 2d Dept. 2014)

“At a trial on the issue of medical necessity, although peer review reports are not admissible to prove the lack of medical necessity, in the case at bar, defendant properly established the lack of medical necessity at trial through the testimony of its expert witness based on his independent review of plaintiff’s assignor’s medical records.”

So an independent review of the medical records that is consistent with the medical rationale in the peer review will win the day for the carrier.  This holds true for a sub-peer review.  Perhaps, I can convince a Kings County Civil Court judge that this is the law…

The rambling man does not meet burden of lack of medical necessity at trial

Webster Ave Med. Pavilion, PC v Allstate Ins. Co., 2014 NY Slip Op 50393(U)(App. Term 1st Dept. 2014)

“The trial court was entitled to reject the sparse and confusing opinion testimony offered by defendant’s medical expert — which reflected the expert’s confessed lack of knowledge as to the assignor’s medical condition at the time of testing — even though the expert’s testimony was unopposed”

Another peer hearsay case

Alev Med. Supply, Inc. v Government Employees Ins. Co., 2014 NY Slip Op 50130(U)

“Contrary to plaintiff’s arguments, the Civil Court properly overruled plaintiff’s hearsay objection to defendant’s doctor’s testimony as to the issue of medical necessity (see Park Slope Med. & Surg. Supply, Inc. v Travelers, 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012]; Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Plaintiff’s remaining contentions lack merit (see A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d, 11th & 13th Jud Dists 2013]; see also Eagle Surgical Supply, Inc. v GEICO Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50854[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).”

Another peer hearsay case.

A chiropractor may manipulate areas other than the vertebral column?

Perez v Fitzgerald, 2014 NY Slip Op 00744 (1st Dept. 2014)

This is a chiropractor malpractice case and the Appellate Division held that the 3 year and not the 30 month statute of limitation period applies to these types of actions.  What is relevant is that in the MUA world, the whole body seems to be fair game to these enterprising chiropractors.  Willets Point held that this was outside the licensure of the chiropractor, potentially illegal and not compensable.

The Appellate Division in dicta or however else you wish to phrase it has endorsed the viewpoint that a chiropractor can work beyond the vertebral column.  Does this invalidate Willets Point?  Better minds than me will make this call.  But this is definitely something that should have the Willets Point theorist thinking.  Anyway, see below:

“The fact that defendant provided treatment to the human body to address a physical condition or pain, which may be within the broad statutory definition of practicing medicine (Education Law § 6521), does not, by itself, render the treatment “medical” within the meaning of CPLR 214-a, since the use of such a broad definition would result in the inclusion of many “alternative and nontraditional approaches to diagnosing [and] treating . . . human disease'” which are clearly nonmedical in nature (Karasek v LaJoie, 92 NY2d at 175; compare Foote 118 AD2d 156).”