9th and 10th are telling the Nassau County District Court (again) that enough is enough

Total Equip., LLC v Praetorian Ins. Co., 2012 NY Slip Op 50078(U)(App. Term 2d Dept. 2012 [9th and 10th Jud. Dis])

The 9th and 10th again tell Nassau District Court that they are not exempt from the rule that an unopposed lack of medical necessity motion spells doom.

Elmont Open MRI & Diagnostic Radiology, P.C. v Tri State Consumer Ins. Co., 2012 NY Slip Op 50079(U)(App. Term 2d Dept. 2012 [9th and 10th Jud. Dis])

I like this line:

“Since plaintiff, in opposition to defendant’s motion, failed to submit any medical evidence sufficient to raise a triable issue of fact as to medical necessity, defendant was entitled to summary judgment”

First Presbyterian, then PSW – Maryland is at it again

PSW Chiropractic Care, P.C. v Maryland Cas. Co., 2011 NY Slip Op 51719(U)(App. Term 2d Dept. 2011)

“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 satisfy its burden of proving that the disputed chiropractic services were not medically necessary. As we find no basis to disturb the Civil Court’s findings, the judgment is affirmed.

Interesting dissent, but if the IME was that bad, this should have stopped at  Civil Court.

Appellate Term First Department does not seem to be too fond of durable medical equipment

Triangle R Inc. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 51663(U)(App. Term 1st Dept. 2011)

“In this action by plaintiff to recover assigned first-party no-fault benefits, defendant’s submissions sufficed to establish prima facie that the medical supplies provided by plaintiff to its assignor were not medically necessary (see Enko Enters. Intl., Inc. v Clarendon Natl. Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52267[U] [2010]; Innovative Chiropractic, P.C. v Travelers Ins. Co., 25 Misc 3d 140[A], 2009 NY Slip Op 52447[U] [2009]). In opposition, plaintiff failed to raise a triable issue of fact. The undated medical report relied upon by plaintiff was not properly sworn (see CPLR 2106, 2109), and should not have been considered (see CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87, 88 [2007]). Moreover, even if considered, the report was insufficient to defeat summary judgment (id.).”

It looks to me like the Appellate Term, First Department, is not too fond of durable medical equipment.  Enko v. Clarendon and Triangle v. NYCM (Defendant is entitled to summary judgment based upon submissions) and A-plus v. Mercury and Pomona v. Geico (Defendants submissions fail to conclusively establish its prima facie entitlement to summary judgment)

A potent dissent

MSSA Corp. v Redland Ins. Co., 2011 NY Slip Op 51606(U)(App. Term 2d Dept. 2011).

A case more remarkable for Justice Steinhardt’s dissent:

“In the instant matter, the peer review report of Dr. Ross did not “shed any light” on the assignor’s condition, nor did it state, in any sufficiently detailed manner, the reason the medical equipment at issue was not needed. The reader of the report is at a total loss to determine what actually happened to the assignor and what parts of her anatomy are amiss and in what way. “Bilateral shoulder and left elbow” injuries may range from a complicated fracture to a minor contusion. Without more, the report is conclusory and vague, and insufficient to shift the burden to plaintiff. I therefore vote to affirm the order denying defendant’s motion for summary judgment.”

The question here involves what needs to be in a peer review to demonstrate prima facie a lack of medical necessity for rendered services.  It is interesting that certain judges are reading these peer reports in a more than perfunctory manner.

Who cares about what the Appellate Division has to say about hearsay

Neomy Med., P.C. v GEICO Ins. Co., 2011 NY Slip Op 51532(U)(App. Term 2d Dept. 2011)

“In support of its cross motion for summary judgment, defendant also submitted, among other things, a peer review report, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue. Contrary to the determination of the Civil Court, there was no need for defendant to annex the medical records examined by the peer review doctor (cf. Matter of State of New York v Wilkes, 77 AD3d 1451 [2010]). Furthermore, [*2]since the purpose of the peer review report submitted by defendant was not to attempt to prove that plaintiff’s assignor was injured as documented in his medical records, or that she was treated as set forth in those records, but to establish that, assuming the facts set forth therein were true, the treatment allegedly provided by plaintiff was not medically necessary, defendant was not required to demonstrate that the records fell within an exception to the rule against hearsay (see id.; 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]).”

Look, I think the medical records on a peer need to be attached.  The Appellate Term is wrong, and the Appellate Division or the Appellate Term, First Department will take a different view when the issue is properly raised.  Yet, I am not sure that this Court has any sympathy towards Mr. Neomi and its “owner” -hence this decision and the other ones.

New Jersey Appellate Division discusses MUA

Prospect Medical, PC v. PLIGA,  2011 WL 2462643 (NJAD 2011)

“Prospect Medical submitted claims for $18,168.68 for three MUAs performed on July 8, 9, and 10, 2008. That claim was amended to $18,084.34 in the arbitration that followed in the National Arbitration Forum before a Dispute Resolution Professional (DRP). The DRP identified one of the issues in dispute in the arbitration as whether the MUAs performed were reasonable and medically necessary and further noted Prospect Medical’s argument “that none of the opinions of chiropractors should be considered since they are not medical doctors and Dr. Sivendra is a medical doctor.” The DRP then reviewed in detail the protocols and standards of the National Academy of MUA Physicians (NAMUAP) regarding the clinical justification, medical necessity, guidelines for determining the necessity and frequency of MUA, the protocols for performing serial MUAs, and parameters for determining MUA progress. Applying those standards to the evidence submitted, the DRP set forth her conclusions:
Based upon a preponderance of the record evidence, I find that Claimant has failed to sustain its burden that the MUAs performed on 07/08/08, 07/09/08, and 07/10/08 were reasonable or medically necessary. Claimant’s medical records are devoid of clinical indicators which might have established the need for MUAs pursuant to the guidelines set forth by the National Academy of MUA physicians. First, the patient was found to be at MMI from chiropractic care on 10/16/07 and said opinion was upheld on 12/31/07. Second, and most significantly, there is no record of any conservative chiropractic care being performed from October of 2007 through June 21, 2008 when the patient presented to Dr. Sivendra. Yet, the protocols require that manipulative procedures must have been utilized in the clinical setting during the two to six week period prior to recommending MUA. No explanation has been provided by Claimant for this significant gap without any chiropractic treatment or any other treatment. Third, there was absolutely no evidence that the patient was experiencing intractable pain and/or biomechanical dysfunction. Fourth, there was no evidence that there was any pain interfering with the patient’s life-style. Fifth, there was no indication of spinal adhesions. Sixth, there was no indication that the patient was unable to undergo conscious chiropractic manipulations due to pain or rigidity. Seventh, there was no suggestion that the patient was being considered for spinal surgery. Eighth, there is a lack of supportive documentation of the hips or shoulders during the initial course of chiropractic treatment with Dr. Zientak to justify MUAs to those areas. Ninth, when the patient presented to Dr. Sivendra on June 21, 2008, the patient had no complaints in the hips or shoulders and Dr. Sivendra did not perform any examination of the hips or shoulders. Finally, while Dr. Sivendra makes the broad statement that the patient had reached a plateau from treatment, there were no medical records submitted demonstrating such. In sum, the medical record evidence simply does not support the MUA services rendered based upon the accepted NAMUAP protocols and clinical justifications for MUAs. Based upon the foregoing, I find that Claimant has failed to sustain its burden that the MUAs performed on 07/08/08, 07/09/08, and 07/10/08 were reasonable or medically necessary by a preponderance of the evidence. Accordingly, the demand is denied in its entirety and there is no reason to address any of the other issues raised.”

“For the trial court to vacate the award based upon Prospect Medical’s argument, it would have had to find that the DRP committed “prejudicial error by erroneously applying law to the issues and facts presented for alternative resolution.” N.J.S.A. 2A:23A–13(c). However, the DRP correctly held Prospect Medical to its burden of proof and examined the record to determine that Prospect Medical failed to meet that burden. Although PLIGA did not refer the precertification request to a medical doctor, Prospect Medical’s claims were properly subjected to a medical necessity analysis, consistent with the Legislature’s “intent to discourage the performance of unnecessary medical services.”

“Prospect Medical filed a verified complaint and order to show cause, seeking to vacate the arbitration award and for the entry of an award of $18,084.34 plus interest and attorney’s fees, alleging the DRP committed prejudicial error.”
“For the trial court to vacate the award based upon Prospect Medical’s argument, it would have had to find that the DRP committed “prejudicial error by erroneously applying law to the issues and facts presented for alternative resolution.” N.J.S.A. 2A:23A–13(c). However, the DRP correctly held Prospect Medical to its burden of proof and examined the record to determine that Prospect Medical failed to meet that burden. Although PLIGA did not refer the precertification request to a medical doctor, Prospect Medical’s claims were properly subjected to a medical necessity analysis, consistent with the Legislature’s “intent to discourage the performance of unnecessary medical services.”
“Dismissed”

A 2007 causation case – affidavit insufficient

New York and Presbyterian Hosp. v. Selective Ins. Co. of America, 43 A.D.3d 1019 (2d Dept. 2007)

Affidavit insufficient to raise a triable issue of fact as to lack of causation relationship between injury and loss.

“The affidavit of its medical expert was conclusory, speculative, and unsupported by the evidence.”

Appellate Term, First Departments latest statement on peer reviews

Devonshire Surgical Facility, Carnegie Hill Orthopedic Servs., P.C. v American Tr. Ins. Co., 2011 NY Slip Op 50513(U)(App. Term 1st Dept. 20110

“Even assuming that defendant issued timely denials of plaintiffs’ claims (see Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]), the peer review report relied upon by defendant to deny plaintiffs’ claims is conclusory and fails to set forth sufficient facts to raise triable issues with respect to its defense of lack of medical necessity (see East Coast Acupuncture Servs., P.C. v American Tr. Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50213[U][2007]).”

A peer review in the First Department presents three options: (1) Insufficient; (2) Sufficient to raise an issue of fact only; and (3) Sufficient to demonstrate lack of medical necessity prima facie.

In the Second Department, it is usually option (3) and rarely option (1).  Never option (2)

Consolidated Mess

Consolidated Imaging P.C. (Rafailova) v Travelers Indem. Co., 2011 NY Slip Op 50159(U)(Civ Ct. Richmond Co. 2011)

I did not miss this case.  I just avoid discussing Civil Court cases that will be overturned as a matter of course and are bereft of accurate reasoning.  There is a lot to say about this case, and I will keep it brief.

First, the “hearsay” objections are without merit for the reasons that we have seen over the last few years.  My previous posts address this topic ad nauseum.

Second, the”generally accepted language” that was quoted in the opinion, which cited to various lower court cases was probably rejected in Enko Enters. Intl., Inc. v Clarendon Natl. Ins. Co., 2010 NY Slip Op 52267(U)(App. Term 1st Dept. 2010), when the Appellate Term spelled out why the peer review prima facie proved the lack of medical necessity for the durable medical equipment in that matter.

Third, you cannot say that the difference in specialties goes to the weight of the evidence, yet cite to Judge Hirsch’s opinion which holds that this particular defect in the peer review or trial testimony is per se fatal.

Fourth, the insurance law and the regulations do not allow pre-certification.  That is the basis for the Magnacare storm that has been brewing over the last year against Geico, and which may spell a 7-8 figure disaster for that carrier.

Fifth, the nature of all insurance contracts, whether they be auto or commercial, involve some degree of Monday Morning Quarterbacking.  This is why 3 levels of appeals are allowed in the commercial health insurance paradigm, followed by an Article 78 if a party is unhappy.

This was just a ridiculous decision.  However, after receiving an affirmation in opposition  from an attorney who attached this case with the Judge’s face on it, I felt the need to respond.

Lastly, I am not offering an opinion as to the persuasiveness or lack thereof regarding the doctor’s testimony.  The trial testimony may very well have been conclusory or self contradictory.  It could have been consistent and logical.  That does not concern me.  But, the methodology that was utilized to reach the ultimate conclusion was improper.  I find this troubling.

How the medicine and the law fit like a hand in a glove

Mahmood v Vicks, 2011 NY Slip Op 00653 (2d Dept. 2011)

Call this one: why an MRI performed more than 6 weeks after the MVA is actually advantageous to the personal injury plaintiff.  As anyone who reads this blog knows, an MRI of the spine performed within 4-6 weeks of the initial examination when the allegation in a “soft-tissue” injury case will usually be grounds to prima facie uphold the lack of medical necessity of the service.  Of course, this requires the testimony of a physician or chiropractor who cites to the 3 or 4 journal articles that correctly stand for this proposition.  Thus, an MRI performed later in the patient’s treatment will usually fare better at trial.

But this case demonstrates another reason why it might be in the patient/plaintiff’s best interest to wait at least two months post evaluation to perform these tests:

“Dr. Tsatskis’s range-of-motion and other tests revealed more than minor limitations in the cervical, thoracic, and lumbar regions of the plaintiff’s spine, as well as in the plaintiff’s right shoulder and left knee. The MRI study of the lumbar region of the plaintiff’s spine, performed about four months after the subject accident, revealed, inter alia, muscle spasm and a bulging disc. The MRI study of the cervical [*2]region of his spine, performed almost a year after the subject accident, revealed muscle spasm and a central disc herniation. This evidence of the extent and duration of the plaintiff’s claimed injuries was sufficient to raise a triable issue of fact under the significant limitation of use category of Insurance Law § 5102(d)”

Now, there are certain attorneys who preach that they are better than other attorneys because they know the medicine better than anyone else.  While that is great, it is even more important to know how the law effects the timing, duration and scope of the medicine.