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.

Post PT treatment not medically appropriate – chiro treatement considered

Glenn Segal PT, P.C. v GEICO, 2014 NY Slip Op 51301(U)(App. Term 2d Dept. 2014)

In support of its cross motion, defendant submitted a sworn statement by the chiropractor who had performed an independent medical examination (IME) of plaintiff’s assignor, as well as an affirmed report by the doctor who had performed a second IME.   Both of the IMEs were performed before the services at issue were rendered. Each IME report set forth a factual basis and medical rationale for the examiner’s conclusion that there was a lack of medical necessity for further treatment. 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 chiropractor’s report, and further failed to sufficiently rebut the conclusions set forth in the doctor’s report (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])”

Was the cut-off based upon the chiro or the physician?  Has to be the latter you would think since it is PT services?  Yet, the court commented on the chiro IME.  Interesting.

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.

Ground rule 11 and the IME cut off

Triumph Assoc. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 50875(U)(App. Term 2d Dept. 2014)

(1) This either explicitly or implicitly overrules Doctor in the House (District Court, Suffolk County).  I am assuming the Ground Rule 11 issue involved multiple providers fighting for the coveted 8, 11 or 13.5 per diem units.  Also, note the absence of the the necessity to introduce expert evidence to substantiate the fee schedule reduction.

“The affidavit of defendant’s litigation examiner established that defendant had timely denied the claims at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also demonstrated that its denial of $583.56 of plaintiff’s $1,291.96 claim was based on the workers’ compensation fee schedule, pursuant to which plaintiff was entitled to only $708.40, which sum defendant had paid. Defendant further showed that it had properly denied plaintiff’s $305.36 claim in accordance with the workers’ compensation fee schedule because plaintiff’s claim was contrary to Physical Medicine Ground Rule 11. As plaintiff failed to raise a triable issue of fact with respect to defendant’s application of the workers’ compensation fee schedule, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these claims should have been granted.”

(2) Some standard was enuniciated with respect to defeating an medical necessity motion predicated upon an IME cut off

“To the extent that defendant timely denied the remaining claims on the ground of lack of medical necessity, the affirmation from the doctor who performed an independent medical examination (IME) on defendant’s behalf was sufficient to establish defendant’s prima facie entitlement to summary judgment dismissing these claims. However, in opposition to defendant’s cross motion, plaintiff submitted an affirmation from plaintiff’s assignor’s treating doctor who stated that he had examined the assignor six days after the IME. His findings contradicted the findings of defendant’s IME doctor and was sufficient to raise a triable issue of fact as to the medical necessity of the remaining claims”

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.

 

 

Comp defense succeeds but medical necessity defense falters

Martin Plutno v Travelers Ins. Co., 2014 NY Slip Op 50412(U)(App. Term 2d Dept. 2014)

(1) Simple fee schedule arithmetic may be performed by “defendant’s employee”: “The affidavit submitted by defendant’s employee established that, as to plaintiff’s claim for dates of service August 3, 2007 through August 25, 2007 seeking the sum of $235.90, defendant had paid $134.80 thereof and had denied the remaining $101.10 on the ground that the amount billed by plaintiff exceeded the fees allowed by the workers’ compensation fee schedule.”

(2) “defendant submitted a sworn statement by the chiropractor who had performed an independent medical examination (IME), which set forth a factual basis and medical rationale for the chiropractor’s conclusion that there was a lack of medical necessity for further treatment”

(3) “However, plaintiff did submit, among other things, a letter of medical necessity sworn to by plaintiff’s treating chiropractor, which was sufficient to raise a triable issue of fact as to the medical necessity of the services rendered”

My own thought process is now there is another split in the departments.  The First Department has a more stringent post-IME “here at issue test”.  This Court solely requires a letter of medical necessity to defeat a summary judgment motion.

That the testing was necessary to rule out herniations is sufficient to warrant a trial on medical necessity

AP Diagnostic Med., PC v Chubb Indem. Ins. Co., 2013 NY Slip Op 51647(U)(App. Term 1st Dept. 2013)

“The medical affidavit submitted by plaintiff – which detailed the assignor’s complaints of pain and the restricted range of motion of his cervical spine, and opined that the MRI was necessary to rule out disc herniations in the cervical spine – was sufficient to raise a triable issue as to medical necessity (see generally Lee v McQueens, 60 AD3d 914 [2009]; cf. CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]).”

This is the second time this Court has cited to a personal injury case to find that medical necessity or lack thereof of diagnostic testing.  Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co., 34 Misc.3d 143(A)(App. Term 1st Dept. 2012).  All I can think is that this Court on some level is requiring an objective basis to be found in rebuttal affidavits to defeat medical necessity motions.

Triable issue of fact – medical necessity

Hunt City Chiropractic, LLP v Chubb Indem. Ins. Co., 2013 NY Slip Op 51679(U)(App. Term 1st Dept. 2013)

“We agree that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the chiropractic services underlying plaintiff’s first-party no-fault claim.”

This appear to be a post-IME cut off case.  I am curious if the affidavit discussed the treatment at issue, and whether there was supporting medical evidence to substantiate the medical appropriateness of the post-IME services.  Compare, Utica Acupuncture v. Interboro

What’s a boy to do?

Promed Durable Equip., Inc. v GEICO Ins., 2013 NY Slip Op 23283 (App. Term 2d Dept. 2013)

(A) The insufficient rebuttal

“In support of the branch of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for supplies furnished to plaintiff’s assignor on December 16, 2008, defendant submitted a peer review report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for these supplies, on the ground, among others, that these supplies were superfluous, given that the assignor had already been involved in a treatment plan which included physical therapy and rehabilitation, which treatment plan, the peer reviewer stated, was sufficient to restore the assignor to the assignor’s pre-accident comfort level. In opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone rebut, this determination”

(B) Errant Attorney

“In the instant case, the brief submitted on respondent’s behalf contained, among other things, pages denominated “Table of Authorities” and “Summary of the Argument” that merely state that these pages were “left blank intentionally.” The “Question Presented” stated only “WHAT’S A BOY TO DO?” The remainder of the respondent’s brief did not address the facts of this case or interpose any specific argument as to why the order from which defendant appealed should be affirmed. Based upon the above, and other statements in the respondent’s brief, we order Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, to show cause why an order should or should not be made and entered imposing sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq.”

What’s a boy to do?  Well, “Girls just want to have fun”.

(C) From another blogger out there:  My Case