Nir v Travelers Ins. Co.

[*1] Nir v Travelers Ins. Co. 2005 NY Slip Op 50466(U) Decided on April 7, 2005 Civil Court Of The City Of New York, Kings County Nadelson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 7, 2005
Civil Court of the City of New York, Kings County

Jacob Nir, M.D. aao DONNA MCCLAY, Plaintiff

against

Travelers Insurance Co., Defendant



99251/03

Eileen N. Nadelson, J.

Plaintiff medical provider instituted this action for first party benefits pursuant to New York's No-Fault Insurance Law. Defendant insurer denied Plaintiff's claim for benefits, alleging that the treatments provided were not medically necessary. The matter was tried before a jury.

In preparing to instruct the jury, the court discovered that there is no Pattern Jury Instruction defining the term "medical necessity," despite the fact that several decisions have been published attempting to define the term judicially, since it is not defined by the No-Fault statute itself.

In Elm Medical, P.C. aao Tamara Feit v. American Home Assurance Company, 2003 NY Slip Op. 51357U, 2003 NY Misc. Lexis 1337 (Kings County 2003), the court adopted the definition of "medical necessity" used by the New Jersey courts:

A necessary medical expense under the [No Fault] Act is one incurred for

a treatment, procedure, or service ordered by a qualified physician based on

the physician's objectively reasonable belief that it will further the patient's

diagnosis and treatment. The use of the treatment, procedure, or service

must be warranted by the circumstances and its medical value must be

verified by credible and reliable evidence.

This is the same definition that was originally used by an earlier court in Medical Experise, P.C.aao Irina Moukha v. Trumbull Insurance Company, 196 Misc 2d 389, 765 N.Y.S.2d 171 (Queens County 2003).

More recently, based on pending legislation, a modification of the New Jersey definition was promulgated: [*2]

treatment or services which are appropriate, suitable, proper and conducive to

the end sought by the professional health services in consultation with the

patient. It means more than merely convenient or useful treatment or services,

but treatment or services that are reasonable in light of the patient's injury,

subjective and objective evidence of the patient's complaints of pain, and the

goals of evaluating and treating the patient.

Behavioral Diagnostics aao Maria Arevalo et al. v. Allstate Insurance Company, 3 Misc 3d 246, 776 N.Y.S.2d 178 (Kings County 2004), citing Fifth Avenue Pain Control Center v. Allstate Ins. Co., 196 Misc 2d 801, 766 N.Y.S.2d 748 (Queens County 2003).

Based on the published decisions of the courts, we believe that an appropriate jury instruction on the definition of "medical necessity" is:

For an expense to be considered medically necessary, the treatment, procedure, or

service ordered by a qualified physician must be based on an objectively reasonable belief that it will assist in the patient's diagnosis and treatment and cannot be reasonably dispensed with. Such treatment, procedure, or service must be

warranted by the circumstances as verified by a preponderance of credible and reliable evidence, and must be reasonable in light of the subjective and objective evidence of the patient's complaints.

Dated: April 7, 2005

__________________________

EILEEN N. NADELSON, J.C.C.