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.”

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