It was not proven that the surgery was not medically necessary

The insurer lost Surgicare’s knee-surgery trial because the court did not credit its expert’s reasoning. The decision also exposes two errors in the old account of the evidence.

Historical note: Surgicare (October 18, 2017) is a Bronx Civil Court trial decision on its admitted evidence, not an appellate rule requiring payment for every surgery.

Last reviewed: September 2026.

Two corrections to the old account

Judge Sabrina B. Kraus awarded the provider judgment in Bronx Civil Court on October 18, 2017. The parties had stipulated to documents and the expert’s qualifications. The court found the insurer’s medical-necessity proof unpersuasive.

The opinion says the expert reviewed the acupuncture notes but did not address them in her report or testimony. The earlier heading incorrectly said she had not reviewed them.

A second excerpt dropped the words “Assuming arguendo.” The court did not find that the patient lied about prior knee problems; it found an inadequate basis for that premise, then explained why the defense still failed even on that assumption. The distinction appears on printed pages 6–7. Read the court’s decision.

Jason’s original comment

Jason’s October 2017 introduction and concluding questions follow unchanged as historical commentary. His concerns about litigation strategy are not trial findings. The anatomical premise in the final paragraph is corrected immediately below it; the archived passage is not medical advice.

Surgery denials on medical necessary grounds are probably the most difficult to substantiate in the arbitral forum.  Whether the applicant has no rebuttal, a letter of medical necessity or a full discussion, the losses are unacceptably high.  The litigation scene is a little better as the peers often go unrebutted.  Yet, this case from Civil Bronx mirrors the common arbitration award I have been reviewing the last few weeks on this project.

It is hard to tell if this decision resulted from  naivete, inappropriately stressing a lack of causal relationship defense that cannot be substantiated without the MRI films and the surgical photos discussed to the trier of the fact or the notion that lack of appropraite physical therapy treatment does not substantiate a lack of medical necessity for extremity surgery.  I cannot tell where this case fell.

But assume the doctor was asked the hypothetical as to why the acupuncture notes did not matter?  Assume the doctor was asked as to why certain types of physical therapy meet some standard (what is the standard)?  Assume the doctor was asked as to the articles, treatises or textbooks stating that the appropriateness of a certain type of PT is a condition precedent to surgery?  Would any of that have established a lack of medical necessity?

Also, inasmuch as the knee is avascular, does the literature support repairing an organ that will not heal on its own?  Will an untreated knee with a tear lead to eventual arthrocis without surgery  The decision is disturbing as a defense practitioner – mainly because I cannot grasp what happened at this bench trial.

Anatomy correction: The archived description of the whole knee as avascular is incorrect. AAOS explains that blood supply differs within the meniscus: its outer third has a rich blood supply, unlike the inner portion. That distinction does not establish whether surgery was appropriate for this patient; treatment and healing questions require a clinician.

Connect to the Encyclopedia

• Medical necessity: case directory and related decisions
• Dayan: a new trial under the correct burden of proof
• Promed Orthocare: substitute testimony and a preserved objection
• Prospect Medical: a New Jersey arbitration-review comparison
• Shirom: an earlier peer review did not reach the later bills

For review of a particular no-fault dispute, contact the firm with the denial, relevant records and procedural history.