Five Boro Psychological Servs. v GEICO Ins. Co.

[*1] Five Boro Psychological Servs. v GEICO Ins. Co. 2011 NY Slip Op 50882(U) Decided on May 1, 2011 Civil Court Of The City Of New York, Kings County Levine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 1, 2011
Civil Court of the City of New York, Kings County

Five Boro Psychological Services A/A/O SELMA NELSON, Plaintiff,

against

GEICO Ins. Co., Defendant.



137971/06

 

Counsel for Plaintiff:

Gary Tsirelman, P.C.

65 Jay Street, 3d Floor

Brooklyn, NY 11201

Counsel for Defendant:

Teresa M. Spina, Esq.

170 Froelich Farm Blvd.

Woodbury, NY 11797

Katherine A. Levine, J.

This case was consolidated with nine other cases for a determination as to whether a witness trained and licensed as a psychologist in Russia can be qualified as an expert to rebut the testimony of a licensed psychologist as to the lack of medical necessity for psychological testing. The proposed expert is not licensed as a psychologist in the United States but is a licensed social worker. The case thus raises anew the time honored question of whether expertise is determined solely by licensure or by other factors.

Plaintiff Five Boro Psychological Services ("plaintiff" or "Five Boro""), a medical services provider, seeks to recover $958.32 for psychological testing , a psychiatric diagnostic interview and a psychiatric review of medical records it provided to its assignor Selma Nelson [*2]("assignor" or "Nelson") following injuries that she allegedly sustained in an automobile accident. Defendant Geico Insurance Co. ("defendant" or "Geico") denied the claim except for $194.58, which it paid for the psychiatric diagnostic interview, on the grounds that the tests and review of records were not medically necessary. At the trial, the parties stipulated to plaintiff's prima facie case and to defendant's timely denial of the claim, and that the amount in dispute was $763.74 in dispute.[FN1]

Defendant presented the testimony of Dr. Franklin Porter, a licensed psychologist, who opined that the five psychological tests [FN2] given to the assignor were not medically necessary. Dr. Porter specifically stated that had the diagnostic interview of the assignor been conducted properly , it would have been sufficient for the psychologist to formulate a diagnosis and treatment plan. He also testified that the psychological tests are based on the same subjective responses that a patient gives to the psychologist during the interview. Dr. Porter also opined that the procedure code listed for "psychiatric review of medical records for diagnostic services (90885) was improper since the only record reviewed was the primary care physician's initial report.

Plaintiff then called Vladimir Grinsberg ("Grinsberg") as a rebuttal witness. Grinsberg was a clinical psychologist in the Ukraine where he worked for six years in a psycho - neurological clinic. He claims that he administered the five tests at issue while working in the Ukraine.

Upon arriving in America, he obtained a masters in social work from Adelphi University; he is not a clinical social worker, which requires a doctorate. Ten years ago, Grinsberg worked as a social worker with the Jewish Board of Family and Children's Services ( "Jewish Board") doing family psychotherapy and teaching families. While working at the Jewish Board, Grinsberg administered and implemented treatment plans for private patients. He treated patients from the beginning to the end, which included reviewing tests, writing reports and interpreting the results of the test. He got reimbursed by insurance companies as a private practitioner

For the past six years he has worked with Five Boro, where he "supervises clinical paper work, "and processes the claims. He also claims to sit in on meetings with psychologists where decisions are made. He does not physically see patients at Five Boro, although he claims that ro he reviews the scores on the tests and compares them to information garnered from the interviews. He also is a co-owner of CityWide Social and Psychological Services and a share holder of All -State Social and Psychological Services. [*3]

Grinsberg is not licensed as a psychologist either in New York or any other state. He is not aware of the requirements for licensure as a psychologist in this state. He has never given any psychological tests or conducted face- face psychological interviews since coming to the United States. Grinsberg repeatedly testified that there is no difference between what a psychologist and social worker can do, including testing, in the United States. He rhetorically asked "What can a licensed psychologist do in America that a social worker cannot do." Since both are grounded in psychology. He does not belong to any professional associations in America.

Although there have been few decisions elucidating defendant's exact burden of proof to establish that the services were medically unnecessary, Nir. V. Allstate Insurance Co., 7 Misc 3d 544, 546 (Civil Ct, Kings Co. 2005), at the minimum, a defendant must "establish a factual basis and medical rationale for the lack of medical necessity of plaintiff's services." Id. Acupuncture Prime Care, P.C. v. State Farm Mutual Auto Ins., 2007 NY Slip Op. 52273U, 2007 NY Misc. LEXIS 7860 (Dist. Ct., Nassau Co. 12/3/2007); See also, Citywide Social Work & Psychological Services v. Travelers Indemnity, 3 Misc 3d 608, 609 (Civil Ct., Kings Co. 2004); A.B. Medical Services, PLLC v. NY Central Mutual Fire Ins. Co., 2005 NY Slip Op 50786U; 7 Misc 3d 136A (Civil Ct. Kings. Co. 2005); The New York courts "explicitly or implicitly look to generally accepted practice in determining medical necessity. Citywide Social Work , supra at 613.

Generally accepted practice "is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling." CityWide, supra at 616. Millennium Radiology, P.C. v. New York Cent. Mut., NY Slip Op 50877U, 23 Misc 3d 1121A (Civil Ct., Richmond Co. 2009) . The doctor must submit "objective testimony or evidence to establish that his opinion is what is generally accepted in the medical profession." Williamsbridge Radiology & Open Imaging v. Travelers Indemnity Co., 2007 NY Slip Op. 50224U, 14 Misc 3d 1231A (Civil Ct., Kings Co. 2007).

The qualification of a witness as an expert presumes that he is knowledgeable about and may testify about the generally accepted medical standards. Olivier v. Robert L. Yeager Mental Health Ctr., 398 F.3d 183, 190 (2d Cir. NY 2005). A determination of a witness' qualification to testify as an expert "rests in the sound discretion of the trial court," and its determination will not be disturbed in the absence of a serious mistake, an error of law, or an improvident exercise of discretion" . De Hernandez v Lutheran Med. Ctr., 46 AD3d 517-518 ( 2d Dept. 2007). See, Riccio v NHT Owners, LLC,7 9 AD3d 998, ( 2d Dept. 2010); Steinbach v. Stern, 2 AD3d 709, 710 ( 2d Dept. 2003). In order for a court to credit the testimony of a qualified expert, it must be convinced that the expert exhibit "a degree of confidence in his conclusions sufficient to satisfy accepted standards of reliability." Matott v. Ward, 48 NY2d 455, 459 (1979).

The expert should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable." De Hernandez, supra, 46 AD3d at 18; Matott v. Ward, supra, 48 NY2d at 459; [*4]Sturgess v Zelman, 15 Misc 3d 487 (Sup. Ct., Nass. Co. 2007). McCormick, Evidence [2d ed], § 13. "The competence of an expert in a particular subject may derive from long observation and real world experience, and is not dependent upon formal training or attainment of an academic degree in the subject. " Miele v American Tobacco Co., 2 AD3d 799, 802 (2nd Dept. 2003). See, Caprara v Chrysler Corp., 52 NY2d 114, 121 (1981); McLamb v Metropolitan Suburban Bus Auth.139 AD2d 572, 573 (2d Dept. 1988 ).

There is no talismanic rule defining whether a witness is an expert or not, as "various combinations of education , training, observation or experience" may suffice, although none of the aforementioned criteria, standing alone, are determinative. Mtr. Of R..M. Children, 165 Misc 2d 441 444 ( Family Ct., Kings Co. 1995). See, Steinbach, supra, 2 AD3d at 710. Thus, the fact that a proffered witnesses does not possess an advanced degree from a university that is nationally accredited does not disqualify him when he possesses a doctoral dissertation on the subject at issue (occultism) and has "more than ordinary knowledge of nontraditional groups and the occult. " Echols v. State., 326 Ark. 917, 936 S.W.2d 509 (Sup Ct. Ark. 1996). Similarly, the lack of a medical licenses does not, in and of itself, disqualify a witness from testifying as an expert on a medical question, Steinbach supra (podiatrist, while only licensed to treat below the ankles, established that he had professional experience in diagnosing and treating burns both above and below ankle and hence could offer expert testimony as to the respondent podiatrist's alleged malpractice in treating the plaintiff's burn injury on the calf). A witness need not possess a special license within a general licensed area in order to testify Smith v. City of NY, 238 AD2d 500 (2d Dept. 1997)(plaintiff's doctor, while not a psychiatrist, had experience in the area of hysteria conversion and thus could testify about the subject; fact that he was not a psychiatrist went to the weight, but not admissibility of his testimony). Similarly the fact that a doctor obtained a degree in a foreign country as opposed to the U.S. does not constitute an automatic disqualifier. Meiselman v. Crown Heights Hospital, 285 NY 389 (1941).

Based upon the above, the court finds that Grinsberg does not possess the combination of long observation, real experience or sufficient education or training to be qualified as an expert on psychological testing. While Grinsberg testified that he administered the five tests at issue while working as a clinical psychologist in the Ukraine, he did not elaborate upon his experience with these psychological tests or at what frequency he utilized the tests. Although Grinsberg did not testify how long he has been in the United States, it is clear that he has not worked as a psychologist since coming to the United State which, according to his testimony, is at least 10 years . He did not indicate that his studies to earn a masters in social work gave him sufficient experience or familiarity with the psychological tests at issue. During these ten years, he has neither administered these tests nor conducted the diagnostic interviews which Dr. Porter testified are essential in order to ascertain the mental status of a given patient.

Off greater import, since commencing his work with All - Boro some six years ago, Grinsberg has not even worked in the capacity of a social worker but rather administered the day - day administrative aspects of the All - Boro. Furthermore, he blithely dismissed any differences between a psychologist or social worker in New York State although he admitted that he is not [*5]aware of what is required for to be a licensed psychologist in this state.

In fact, there are substantial differences in the licensure requirements and practice of a psychologist as compared to a social worker in this State. Compare Education Law §7601-a (definition of scope of practice of psychology) with Education Law §7701(1) (definition of scope of practice of licensed master social work) and Education Law §7701(2) (definition of scope of licensed clinical social work). See generally, People of State of NY v, RR, 12 Misc 3d 161 (Sup. Ct. NY Co. 2005).

Of even greater significance to the instant matter is the difference in scope of practice between a licensed master social worker and a licensed clinical social worker. Prior to 2002, New York State only protected the use of the titles of psychologist and certified social worker, which meant that anyone could legally practice psychology or social work so long as they did not hold themselves out as social workers or psychologists or describe their services as being psychological in nature. People of State of NY supra, 12 Misc 3d at 168. In 2002, the Legislature enacted news laws licensing the practice of psychology and social work and, in particular distinguished between licensed master social workers and clinical social workers. (Laws, 2002, Ch. 420, §1, eff. 9/1/04).

The social work statute contains "two tiers of social work so that the scope of practice of a licensed master social is included within the larger scope of practice of licensed clinical social work. People of State of NY, supra, 12 Misc 3d at 171. See Education law 7701 (2)(1). "Whereas licensed clinical social workers are authorized to make and render diagnoses and the prognoses which flow from and are intimately related to them, administer and interpret tests and measures of psycho social functioning ( so called psycho diagnostic testing...), develop and implement assessment-based treatment plans and provide all forms of psychotherapy; licensed master social workers are only permitted to perform psycho social assessments and evaluations, and may not make or render diagnoses or prognoses , and may administer but not interpret tests and measures of psycho social functioning." See Education Law §§7701 1(a) and 2(a). 12 Misc 3d at 172-74. A licensed master social worker may render the clinical functions and perform the clinical functions when then do so under the supervision of a licensed clinical social worker. Education Law §7701(d); 8 NYCRR 74.6 n 25.

It is clear that Grinsberg only possesses a master social worker license and hence is not qualified in this state to either make or render diagnoses or prognosis or interpret tests and measures of psycho social functioning. Hence, he does not possess the licensure or expertise which would qualify him to testify as an expert as to the merit or medical necessity of the five psychological tests at issue in general or how these tests pertained to the assignor. Furthermore, Grinsberg presented no testimony that he actually worked under the supervision of a licensed clinical social worker. In fact, it appears that his social worker license was irrelevant to his main job duty at Five - Boro - to supervise clinical paper work and process the claims. [*6]

In light of the above, the Court finds that Grinsberg is not qualified as an expert to offer rebuttal testimony to the testimony of defendant's expert Dr. Porter. Dr. Porter testified, to the court's satisfaction, that the five tests rendered and the review of records were not medically necessary. As such, the case is dismissed.

The foregoing constitutes the decision and order of the court.

Dated:May 1, 2011

HON. KATHERINE A. LEVINE

Judge, Civil Court Footnotes

Footnote 1:These are the facts of one of the nine cases. Since this ruling covers all the cases a recitation of the amounts sued for in the other cases is not necessary.

Footnote 2:The five tests given were the Beck Anxiety Inventory, the Beck Depression Inventory, the Beck Hopelessness Scale, the Pain Patient Profile(P-3), and the Post Traumatic Diagnostic Scale (PDS).