Appellate Division opines on lack of medical necessity defense

Arnica Acupuncture PC v Interboro Ins. Co., 2016 NY Slip Op 01434 (1st Dept. 2016)

This was my second foray at the Appellate Division (this time as a defendant and with permission from the Appellate Division) relating to the issue of “lack of medical necessity”.  Specifically, what is necessary to defeat a facially proper IME.

I will be quite frank.  I have seen the Appellate Terms hold that facially insufficient affidavits are sufficient to raise an issue of fact on the issue of medical necessity in opposition to an IME report.  e.

This opinion is important relative to the following language: “Contrary to the Appellate Term’s finding, plaintiff’s supervising acupuncturist’s affidavit failed to raise a triable issue since it was not based on an examination of the patient, nor did it address or rebut the findings of objective medical tests detailed in the sworn report of defendant’s medical expert. The insured’s subjective complaints of pain cannot overcome objective medical tests”

Three points.

(1) The report was not based upon an examination.

The examination does not have to be performed by the affiant.  The examination, however, has to be in the record and in admissible form if a non treating provider wants to use somebody else’s examination.  The issue of “contemporaneous” will have to be litigated another day.

(2) Must rebut finding of objective medical tests

This is where I think many affiants will get caught up.  The recorded examination must itself be based upon sufficient objective evidence.  This “objective basis” I think is where providers may get hung up.  One of the reasons a provider may chose litigation over arbitration is because the provider is not good at documenting treatment, i.e., objective testing.  The objective requirement will prove to be problematic to some providers.

(3) Subjective complaints alone will not fly.

One of the frustrating aspects of arbitration is when the  Applicant harks on the subjective pains as a basis for further treatment or when a doctor in court on cross-examination has to admit that conservative treatment is palliative and will give short term relief to pain.  I would surmise the relevant question becomes whether the treatment will assist in alleviating the documented objective symptomatology.

Would I call this decision ground breaking?  I would say it is the culmination of many years of appeals on this issue.

The issue of peer reviews has not been touched by this case, and I hearken to add that I think a peer review rebuttal is probably a lot easier to put together than an IME rebuttal.  Peer rebuttals can be predicted upon fantasy; IME rebuttals must be predicated upon fact.