Willets Point Chiropractic P.C. v Allstate Ins.

[*1] Willets Point Chiropractic P.C. v Allstate Ins. 2012 NY Slip Op 51614(U) Decided on August 16, 2012 Civil Court Of The City Of New York, Richmond County Straniere, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2012
Civil Court of the City of New York, Richmond County

Willets Point Chiropractic P.C. As Assignee of Marina Flores, Petitioner,

against

Allstate Insurance, Respondent.



Richard Grosso, D.C. PC. As Assignee of Marina Flores Petitioner,

against

allstate Insurance, Respondent.



017113/11

Philip S. Straniere, J.

Your toe bone connected to your foot bone,

Your foot bone connected to your ankle bone,

Your ankle bone connected to your leg bone,

Your leg bone connected to your knee bone,

Your knee bone connected to your thigh bone,

Your thigh bone connected to your hip bone,

Your hip bone connected to your back bone,

Your back bone connected to your shoulder bone,

Your shoulder bone connected to your neck bone,

Your neck bone connected to your head bone,

I hear the word of the Lord![FN1] [*2]

Plaintiff, Willets Point Chiropractic, PC (Willets)assignee of Mirna Flores (Index No. 17113/11) and plaintiff, Richard Grosso, DC, PC (Grosso) assignee of Mirna Flores (Index # 17119/11) each commenced an action against Allstate Insurance Company seeking to be compensated for professional chiropractic services rendered to Mirna Flores in the form of "manipulation under anesthesia" (MUA) which was denied by defendant Allstate as neither medically nor chiropractically necessary.

It is stipulated that the plaintiffs timely and in proper form submitted their respective bills for service and that the defendant timely and in proper form denied their respective applications. Defendant's denial was based on an independent chiropractic examination (ICE) report of Chester Bogdan DC (Bogdan), dated August 5, 2010, in which he concluded that no further chiropractic treatment was chiropractically necessary. The MUA services rendered herein were performed almost one year later, in July 2011.

A trial was commenced on June 13, 2012 and concluded on June 26, 2012. Both sides were represented by counsel. The parties had stipulated that both actions for chiropractic services rendered during the MUA could be joined together for trial as they involved common issues of law and fact. It was also conceded that neither side had information as to whether payment to the pre-screening physician, the anesthesiologist and facility involved in the MUA had been either made or denied by Allstate. Nor was there any evidence presented as to whether the plaintiffs commenced actions seeking payment for regular chiropractic services rendered to Flores after the August 2010 Bogdan report.

TREATMENT HISTORY:

The patient, Mirna Lopez-Flores was injured in an automobile accident on May 9, 2010. She did not go immediately to the hospital, but later that same day went to the emergency room at Winthrop Hospital where she was examined, X-rayed, had a CT scan and was released. She came under the care of Richard Grosso, DC, chiropractor, an orthopedist, Dov Berkowitz, MD and Eric Jacobson, MD, a specialist in Physical Medicine and Rehabilitation. She was initially receiving chiropractic treatment five times a week, which apparently was commenced on or about May 19, 2010 and which was later reduced to three times a week. In addition Flores was going to physical therapy three times a week.

At the time of the peer review on August 5, 2010, Flores was still receiving chiropractic treatment and physical therapy three times a week. Dr. Berkowitz had recommended her for three MRI exams.

On June 19, 2010, she underwent MRI's of both her cervical and lumbar spine. The radiologist rendered an impression of "posterior disc herniations at L4-5 and at L5-S1 impinging on the anterior aspect of the spinal canal and abutting the nerve roots bilaterally." The cervical MRI came back negative.

On June 22, 2010, Flores had an MRI of her right shoulder. The radiologist's impression was "findings consistent with an intrasubstance tear of the subscapularis muscle. Subacromial-[*3]subdeltoid bursitis."

On August 5, 2010, Bogdan, DC conducted an ICE of Flores and concluded that no further chiropractic treatment was required. In spite of the denial, Flores continued to receive chiropractic treatment. It is unclear whether these treatments were performed by plaintiff Grosso or by plaintiff Willets where Grosso is the chief executive officer according to the Department of State, Division of Corporations records, as the progress notes and "SOAP" notes don't have any letterhead or its equivalent but appear to be signed or initialed by Grosso.

On July 16, July 23, and July 30, 2011 plaintiffs performed MUA's on Flores at a facility at the New Horizon Surgical Center in Paterson, New Jersey. Each plaintiff billed defendant $1,641.92 for each of the three treatments and each seeks to be compensated in the sum of $4,925.76 for their services. It should be noted this does not include a fee from the facility, the pre-screening physician or the anesthesiologist.

Bogdan rendered his opinion after conducting his chiropractic examination but did so without being provided with any records from the treating chiropractor by the defendant. Bogdan indicated that he did not need the treating chiropractor's notes in order to render his own opinion based on a chiropractic exam [FN2].

There was another issue raised in regard to Bogdan. He admittedly is not certified to perform MUA and therefore cannot give an opinion as to the necessity of that particular procedure. However, Allstate's and Bogdan's position is that he was opining only as to the need for further chiropractic service after August 2010 and did not have to deal with the issue of MUA because there was no need for any additional chiropractic services as Flores' conditions had resolved and she had reached maximum benefit from her treatments, let alone her requiring the MUA performed almost one year later in July 2011. The court agrees that the threshold issue was extension of chiropractic treatment after the ICE date and that the MUA is being viewed as part of the overall chiropractic treatment Flores received. [*4]

Plaintiffs have several burdens in these cases. First, establishing that additional chiropractic services were needed after the date of Bogdan's ICE. Second, that the injuries that necessitated the MUA were causally related to the automobile accident of May 2010. Third, that MUA is a recognized treatment for Flores' injuries. The credible evidence is that the plaintiffs have not met their burden in those regards and have not successfully rebutted defendant's decision to terminate treatment.

Issues Presented:

A. Are Chiropractors Permitted to Perform MUA?

Before addressing the above issues particular to these claims, it is necessary to determine if chiropractors may perform MUA. This court is concerned by the growing number of no-fault claims for MUA which seem to be proliferating over the last year or so in the court system. Several carriers refuse to recognize MUA as a compensable treatment option under no-fault or other health related insurance policies. In fact there is debate in the medical and chiropractic communities as to the effectiveness of MUA as a treatment.

In this vein, it should be noted that in all of the MUA trials presided over by this judge, no litigant has ever presented any independent study supporting the effectiveness or need for this treatment or establishing that the patient who received MUA had a condition which was made appreciably better after the MUA rather than if only conservative chiropractic treatment had been continued or some other modality employed.

Are there any studies showing what is the status of the patient six months or a year after MUA? None has been presented to this court. No one has answered the question whether the reason patients are not seen again by chiropractors after undergoing MUA is that insurance coverage has run out rather than they are better and no longer need treatment. And because the patients for whom MUA is recommended by definition do not tolerate "pain" well, is there any study examining whether they "feel" better and have "greater" range of motion because they think the procedure works rather than it actually did anything physically to them to ease their pain and increase mobility? It would seem that because pain is subjective and these patients are by definition not tolerant of pain, this would be something an independent academic or health care professional institution would have studied. But as noted above, no such independent studies have been presented to this court.

A quick on-line search disclosed that most of the "success" reports are self-serving statements from the persons who practice MUA and who recommend the treatment and not by unaffiliated peer review process. Is MUA an accepted medical/chiropractic procedure or is it "junk" medicine/chiropractic? This court is not convinced that this issue has been resolved so as to warrant the seemingly sky-rocketing use of this procedure in no-fault insurance situations.

Finally, MUA appears to be a procedure whereby a chiropractor who has been unsuccessful treating the patient with conservative treatment recommends that the patient [*5]undergo MUA to be performed by the same chiropractor. Rarely, if ever, is a second opinion obtained before this "surgical" procedure is undertaken.

There have been several published decisions in regard to MUA and an apparent acceptance that MUA is a recognized treatment option for chiropractic patients and subject to being compensated for under a no-fault insurance policy [Flatbush Chiropractic PC v Metlife Auto & Home, 35 Misc 3d 1023(A), (2012); Kraft v State Farm Mutual, 34 Misc 3d 376 (2011); Giugliano v Merchants Mutual, 29 Misc 3d 367 (2010)].

The common theme for approval of payment on these claims is that the Workers' Compensation Fee Schedule allows it. No-fault insurance claims do not have there own fee schedules and health service providers are compensated under workers' compensation codes [Insurance Law §5108]. As noted in Giugliano, the Workers' Compensation Fee Schedule (WCFS) contains a category for "Anesthesia, Surgery, Radiology, Pathology & Laboratory, Medicine and Physical Medicine"-parenthetically all health related procedures which a chiropractor is not licensed to perform- as well as a separate "Chiropractic" fee schedule. The courts in those cases allowing compensation have reasoned because chiropractors by the statutory definition of their profession can perform "manipulations" they may perform "manipulations under anesthesia" [emphasis added] so long as the anesthesia is administered by an anesthesiologist or some other authorized medical professional. The protocol for MUA also has a requirement that a medical doctor examine the patient and approve of the procedure and that it be performed at a surgical center or its equivalent, thereby somehow further legitimatizing the chiropractic MUA.

The conclusions in these cases have been reached even though the chiropractors performing the MUA bill their services for the procedure under the WCFS as "surgery." Routinely these bills are submitted with the designation for the procedures as being under CPT Code 22505 "manipulation of spine requiring anesthesia, any region." In the current cases Code 27194 was also used by the plaintiffs. This code is used for closed fractures and is designated for the hip and pelvic area. It is described as "treatment of pelvic ring fracture, dislocation, diastasis or subluxation; with manipulation, requiring more than local anesthesia." There is no equivalent CPT Code for chiropractic performance of MUA under the Chiropractic Schedule. Why this code was used by plaintiffs for an alleged shoulder injury is curious or else there was no apparent billing for the shoulder manipulations.

Rather than reaching the conclusion that chiropractors cannot do these procedures, some Workers' Compensation Board judges and the court decisions which have addressed this issue, concluded that MUA was allowed because it was "manipulation," which chiropractors can, by licensing, perform. These cases also refer to a State Education Department letter dated September 18, 2007 which allegedly concluded that the Education Law does not prohibit a chiropractor from performing MUA. None of these cases concluded that this letter permitted the practice only that it was not prohibited. Although neither side submitted a copy of this "letter," the court was able to obtain one. And as Billy Flynn notes in the musical "Chicago" concerning the identity of [*6]"Mary Sunshine", "things often aren't what they seem."

The letter in question is actually dated September 13, 2007 and not September 18, 2007. It is on letterhead from the State Board of Chiropractors and signed by the Executive Secretary. It is not addressed to anyone in particular but has the salutation "To Whom It May Concern" which in and of itself is a curious way to address a document which by its contents is apparently authorizing chiropractors to perform MUA a procedure not specifically granted in the licensing statute. It starts "I write in response to your inquiry regarding chiropractic manipulation under anesthesia" yet does not indicate who made the request.

Analysis of the contents of the letter discloses rather than an outright endorsement of chiropractic MUA it is more akin to the wedding scene in "Fiddler On The Roof" when Tevye asks the Rabbi if men and women are permitted to dance together.

Tevye:Well, Rabbi?

Rabbi:Dancing...Well it's not exactly forbidden, but....

Tevye:There you see? It's not forbidden.

At which point the men and women break "tradition" and begin dancing together leaving the question unresolved.

When the entire letter is read, it is clear that all it does is say that as written the Education Law does not prohibit MUA, it does not indicate that it is specifically permitted. There is no discussion of the issue of whether or not the procedure is "surgery" and whether chiropractors may perform surgery. In fact, the language of the letter emphasizes the word "may" in regard to MUA and then sets forth limiting parameters and caveats as to its use. It says: While the practice act does not specifically prohibit a chiropractor from performing spinal manipulation on patients who are under anesthesia, this type of procedure may present special risks and a practitioner should carefully evaluate such use. Furthermore, the chiropractor is not authorized to order or administer anesthesia.Every chiropractor licensed in New York State must be competent to perform any procedure that they provide by virtue of education or training. Also, the procedure must be warranted by the condition of the patient and, thus, does not constitute excessive treatment, which would be a violation of Part 29 of the Regents Rules on Unprofessional Conduct.I would note that while it may be permissible in New York State for chiropractors to perform manipulations on patients under anesthesia, gaining hospital privileges and obtaining physicians willing to prescribe and administer anesthesia for this purpose must be addressed.

As pointed out later in this decision, there is nothing in the Education Law which permits the executive secretary to expand the statutory description of the areas of practice of a particular profession. The letter is neither an "opinion of counsel" nor does it indicate that the opinion is [*7]that of the State Board of Chiropractic.

Education Law §6551(1) defines the practice of chiropractic. (A)s detecting and correcting by manual or mechanical means structural imbalance, distortion, or subluxations in the human body for the purpose of removing nerve interference and the effects thereof where such interference is the result of or related to distortion, misalignment or subluxation of or in the vertebral column.

Nothing in this section permits a chiropractor to conduct a surgical procedure [FN3] nor apparently, is "surgery" specifically prohibited to a chiropractor by Education Law §6551(3) other than a prohibition to treating "any surgical condition of the abdomen." As difficult as it is to believe, there apparently is no New York statute defining "surgery." Considering barbers at one time performed surgery, hence the red in a classic barber pole, you would think New York would want to define that term. Because it is undefined perhaps chiropractors have the same privilege as barbers.

Stedman's Medical Dictionary, 27th Edition, defines "surgery" as "1. The branch of medicine concerned with the treatment of disease, injury, and deformity by physical operation or manipulation. 2. The performance or procedures of an operation."

Stedman's defines "medicine" as "2. The art of preventing or curing disease; the science concerned with disease in all its relations. 3. The study and treatment of general diseases or those affecting the internal parts of the body, especially those not usually requiring surgical intervention."

Applying the Stedman's definition of "surgery" to that of chiropractic in the Education Law, leads to the conclusion that chiropractors cannot practice surgery because they are not engaged in the practice of "medicine." In New York chiropractic care is not considered "medicine" neither is a chiropractor a "physician."Although chiropractors engage in "manipulation," they do not treat "disease, injury or deformity." Nor can they "operate" [Education Law §6551(3)]. The Education Law §6520 defines the "practice of medicine" as "diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition." Chiropractors are not permitted to do any of these things. Does MUA cross the line between "correcting" and "treating?"

It is clear then, that if MUA is a form of surgery, which the CPT Code labels it as such, chiropractors are prohibited from engaging in it. If MUA is not a form of surgery, then why is not it included under the Chiropractic CPT Code? [*8]

Can the court and the Workers' Compensation Board judges rely on an Education Department letter as a basis for permitting this practice? A review of the Education Law does not disclose any authority for the Board of Regents to expand the practice of a profession beyond that set forth by the legislature in the statute. Education Law §6504 states:

Regulation of the professions. Admission to the practice of the professions (licensing) and regulation of such practice shall be supervised by the board of regents...and administered by the education department, assisted by a state board for each profession....

Education Law §6506 gives the board of regents the authority to "supervise the admission to and the practice of the professions." Education Law §6507 grants the authority to administer the admission and practice of the professions to the state education department and to promulgate regulations [Education Law §6507(2)(a)]. State boards for each profession are established by Education Law §6508 for the purpose of assisting the board of regents and the education department on "matters of licensing, practice and conduct." The board may conduct and grade examinations, assist in other licensing matters [Education Law §6508(2)], and conduct disciplinary proceedings [Education Law§6508(3)].

When taken together it is apparent that these bodies are charged with regulating professions which include both medicine and chiropractic. But there is nothing in the statute that gives these entities the authority to expand the scope of a defined practice beyond that which the legislature has set forth. If the general consensus is that chiropractors should perform MUA then the statute should be changed to include MUA and not by a letter which does not even have the authority of an "opinion of counsel" or the imprimatur of the Board of Regents or the State Board of Chiropractic. As has been done in the past, when new treatment techniques and diagnostic tools have evolved the legislature has so acted. This is evidenced by the legislative history of the chiropractic statutes. It behooves the chiropractic profession to amend the statute because if chiropractors are performing MUA when they are not authorized to do so under the statute, it would be "professional misconduct" under Education Law §6509(2).

This issue of whether MUA is a surgical procedure and therefore the practice of medicine was recently litigated in Texas [Texas Board of Chiropractic Examiners v Texas Medical Association, ___SW3d___, 2012 WL 2742554, 7/16/12]. Unlike New York, Texas specifically defines a surgical procedure and prohibits chiropractors from engaging in surgical procedures [Texas Occupational Code §201.002 (a)(4) and §201.002( c)(1)]. In fact, the Texas statute in describing what is included in a "surgical procedure" refers to those "procedures included in the surgery section of the common procedures coding system as adopted by the Centers for Medicare and Medicaid Services of the United States Department of Health and Human Services." The Texas Court of Appeals ruled MUA is in fact a surgical procedure under those codes and cannot be performed by chiropractors.

Presumably MUA in Texas is performed in the same manner as in New York, so how can it be "surgery" in Texas and not "surgery" in New York. Is there a difference merely because [*9]when no-fault MUA is performed in New York it is billed under Workers' Compensation CPT schedules while Texas uses Medicare/Medicaid CPT schedules promulgated by the federal government? That would make sense if each state was describing two different procedures. The MUA procedure is the same so it cannot be more than one classification.

For instance if you are asked "What's big, grey, weighs over a ton and has a trunk in front?" the answer can be either an elephant or a Volkswagen Beetle. But in that case the description fits two different things. If you throw in an engine, there is only one possible answer [FN4]. Here there is agreement as to what is meant by MUA. The question becomes whether it is really surgery. To allow MUA by chiropractors would mean that the entities that code MUA as "surgery" are wrong in their classification of the procedure and that it should be reclassified. If it is not "surgery" then why is it performed at "surgical centers?"

If MUA is surgery, then chiropractors cannot perform it because surgery can only be performed by practitioners of medicine and that does not include chiropractors. This is not to say that chiropractors do not have the skill and training to perform MUA, it is that there is a gap in the legislation that created the parameters of the chiropractic profession. It is the function of the legislature to correct the problem and not for the courts to expand the definition beyond the plain language of the statute.

B. Can chiropractors manipulate parts of the body other than the vertebral column?

Assuming that chiropractors are permitted to perform MUA, to what extent can they manipulate parts of the body other than the vertebral column? This court has been confronted with claims by chiropractors for manipulation of not only the spine but of other parts of the body.

In this case, according to the three procedure reports the plaintiffs prepared, they performed MUA on the cervical spine, the thoracic spine, the lumbopelvic spine(which included some hip manipulation) and the shoulders of Flores. The cases that have approved these extra-spinal manipulations have focused on the language in the Education Law describing chiropractic as able to treat "structural imbalance, distortion or subluxations in the human body" as permitting such treatments. The problem with this interpretation is that it ignores the plain language of the rest of the statute that the purpose must be the "removing of nerve interference and the effects thereof where such interference is the result of or related to distortion, misalignment or subluxation of or in the vertebral column."

Taking the broadest interpretation of this statute, which some courts apparently have done, then a chiropractor could conceivably treat all of the parts of the body in "Dem Bones" because nerves reach each of them and those nerves are connected to the spine. So a chiropractor could manipulate the toes because the nerves in those appendages hurt? [*10]

However, the language of the statute makes it clear that the treatment has to arise from a "distortion, misalignment or subluxation of or in the vertebral column" and not a problem in another area of the body not generated from the spine. The problem must originate in the spinal column and not vice versa. A strict reading of the statute permits the chiropractor to manipulate the spinal column to relieve pain in another area of the body. They cannot by the statute manipulate the other area to relieve the pain in that area. Again we are back at the difference between "treatment" and "correction." If this is something chiropractors are trained to do, then the statute has to be changed.

In the no-fault setting this means that the non-spinal area which is being treated must not only have "nerve interference" but that nerve interference must be related to the automobile accident. The plaintiff herein, as have other chiropractors, testified that the manipulation is necessary to break down fibrous adhesions and scar tissue which the patient developed. The cases supporting the procedure cite a Workers' Compensation Board case [Aramak, 2009 WL 456874 (NY Work. Comp. Bd)] as permitting chiropractors to perform these procedures [See also Solomon Schechter Day School , 2006 WL 3889159 (NY Work. Comp. Bd.]. Aramak rested its conclusion on the representation that the chiropractor was only going to perform manipulation to break-up fibrous adhesions and scar tissue formed around the spine and not in other areas of the body, so its applicability to more extensive manipulation must be questioned.

These holdings are interesting in view of the fact that they appear to be an expansion of chiropractic care beyond the words of the governing regulations concerning Workers' Compensation claims.

Limitations of chiropractic treatment. (a) When care is required for a compensable injury, an injured employee may select to treat him or her any duly registered and licensed chiropractor authorized by the chair to render chiropractic care only if said injury consists solely of a condition which may lawfully be treated by a chiropractor as defined in section 6551 of the Education Law. If the injury does not consist of a condition which may lawfully be treated by a chiropractor or consists of multiple conditions, any one of which is outside the limits prescribed by the Education Law for chiropractic treatment, the chiropractor may not initially treat such employee for any condition but must so advise the injured employee and instruct him or her to consult a physician of the employee's choice for appropriate care and treatment. Such physician shall supervise the treatment of said condition, including the future treatment to be administered to the patient by the chiropractor. [12 NYCRR §346.1].

Based on this regulation to be an authorized treatment for Workers' Compensation purposes, the plaintiff would have to establish that the patient's condition can only be treated by a chiropractor and that the MUA was the appropriate treatment. Although this is a no-fault case, the compensation is made pursuant to the Workers' Compensation CPT Code. As there is neither a chiropractic nor a separate no-fault code for MUA, and payment is made under the Workers' Compensation code, then the standard to be applied to authorize treatment must be the same as in Workers' Compensation. The plaintiffs have not shown that the patient's injury could not and [*11]should not have been treated by a physician such as an orthopedist or neurologist, or to a lesser degree by a physical therapist rather than by MUA.

But again, this interpretation gets back to the same problem, what exactly does the Education Law §6551 permit a chiropractor to do.

A review of the treatment records and the testimony, establish that there is an utter failure to prove that the condition Flores complained of was related to the motor vehicle accident. Flores' complaints were of pain in the lower back, neck and right shoulder. There was no complaint concerning the thoracic area of her spine, yet plaintiff felt the need to perform MUA in that area. There was no MRI done of the thoracic spine. The MRI of the cervical spine showed no injury whatsoever, in fact, it was a "normal examination," so what was the need for MUA of either the cervical or thoracic area?

The patient's complaint in regard to her shoulder was only of injury to her "right" shoulder. So why was it necessary to perform MUA on both shoulders? In fact, the MRI which was taken of the right shoulder only and it revealed "an intrasubstance tear of the subscapularis muscle" and "subacromial-subdeltoid bursitis." Plaintiff cannot explain how MUA is the proper treatment for a tear of a shoulder muscle and bursitis and where a chiropractor has the authority to treat an injury of that nature. It is unclear under which billing code the MUA of the shoulder was submitted to the defendant as it was not listed on plaintiffs' claim forms. There is nothing in the record, nor did plaintiff's trial testimony, show how manipulation of the spine or of the shoulders would relieve nerve interference in the vertebral column affecting the shoulders.

The MRI of the lumbosacral spine revealed "posterior disc herniations at L4-5 and at L5-S1 impinging on the anterior aspect of the spinal canal and abutting the nerve roots bilaterally." When the court questioned the plaintiff as to the appropriateness of performing MUA on someone with disc herniations, the witness responded there is no danger if you know what you are doing. He produced no accepted professional studies that supported his conclusion. In fact, if the Education Department letter stands for anything, it warns chiropractors not to be undertaking MUA if there is some inherent risk to the patient beyond regular chiropractic manipulation.

Also, there is no indication that the plaintiffs ever received a copy of any of the MRI reports as they are addressed to Dr. Berkowitz with a copy to Dr. Jacobson, both medical doctors. Did the plaintiffs even have a copy of the reports when they did the MUA's? There is a question as to whether the plaintiffs as chiropractors are trained or permitted to read MRI's and diagnostic tests other than X-rays. The Education Law §6551 only discusses X-rays in regard to chiropractors and their training. Does New York permit chiropractors to be certified to read MRI's and other more modern diagnostic tools? The plaintiffs are licenced in New Jersey and performed the MUA there where the New Jersey statute does recognize that chiropractor's use other diagnostic tests besides X-rays. If the plaintiffs did not receive the actual MRI's to view even if they got copies of the reports, how could they seriously consider performing the MUA on a patient with a disc herniation? And if they did have the actual MRI's they have to establish they [*12]have the training to read the MRI's,

Again, this is not to say that the plaintiffs and other chiropractors are not qualified to perform MUA assuming that is a recognized treatment, it is that New York does not currently allow them to do it.

Finally, plaintiff has failed to explain why it billed defendant using CPT Code 27194 which is for closed fractures in the hip and pelvic area and performed MUA in that area when there is no record of any complaint or injury in that area by the patient.

Based on the MRI and other reports, it is difficult to conclude exactly what are the "structural imbalance, distortion and subluxations" that Flores suffered from that the plaintiffs sought to correct by the MUA?

This position of the plaintiffs that the MUA was safe may have been acceptable if the plaintiff had any proof that a physician had examined the patient and approved the MUA procedure for her. No such report was presented at trial nor do the records submitted by the plaintiff even reveal the name of that physician. None of the three procedure reports prepared by the plaintiffs disclose the clearing physician's name. In fact the MUA report for the third day of procedure, July 30, 2011 lacks even the name of the anesthesiologist.

Also, missing from the plaintiff's submissions is a consent form signed by the patient. As this is a "surgical" procedure requiring the use of anesthesia, it would seem that such a document is required. Because the MUA was performed on three different dates each a week apart, an argument could be made that a consent form was needed for each procedure.

Pubic Health Law §2805-d provides: Limitations of medical, dental or podiatric malpractice action based on lack of informed consent

1. Lack of informed consent means the failure of the person providing professionaltreatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation. 2. The right of action to recover for medical, dental or podiatric malpractice based on lack of informed consent is limited to those cases involving either (a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure which involved invasion or disruption of the integrity of the body.

Although the case at bar is not a malpractice action, the language of the statute may be helpful in resolving the issue of how to treat chiropractic MUA. As is obvious from the statute, chiropractors are not specifically mentioned. Does this mean that they are not required to obtain [*13]an "informed consent" from a patient? After all Education Law §6551 does not use the terms "treatment or diagnosis" in describing chiropractic. These terms are reserved for the practice of medicine (Education Law §6521). Or is this another situation where "medical" malpractice is being given an interpretation beyond the language of the Education Law and is being used to refer to all health treatment by professionals other than those performed by dentists and podiatrists?

If it is concluded that chiropractors are not subject to obtaining informed consent from a patient, then can it also be concluded that they cannot perform "surgery" because informed consent is required for non-emergency surgery under the Public Health Law and MUA is considered a non-emergency surgical procedure under the Workers' Compensation codes.

In addition to all of the problems analyzed above, plaintiff failed to explain how the accident caused scar tissue or fibrous adhesions to develop which required the MUA and that the patient's complaints were not related to her general physical condition ( 40 years old, 5'3" and 163 lbs.) or her job (medical assistant). If not related to the accident than some other source other than the no-fault carrier should pay for the services.

Plaintiff testified that Flores met the criteria for MUA established by the National Academy of Manipulation Under Anesthesia Physicians and went through the eight listed items a practitioner of MUA should check before recommending MUA to a patient. Plaintiff testified that Flores met the first seven criteria. The plaintiff indicated that the National Academy also set forth eight diagnoses that are "responsive to MUA" and that Flores met four of the eight criteria. A skeptic might ask if a patient had been unresponsive to chiropractic care for the extended period that this patient underwent-over one year of chiropractic treatment, why would you conclude that more aggressive chiropractic care was needed rather than determining some other treatment should be undertaken or that the patient had in fact achieved the maximum benefit?

Interestingly, the criteria relied upon by the plaintiff are issued by the "National Academy of Manipulation Under Anesthesia Physicians" (emphasis added). As pointed out above in New York chiropractors are not considered physicians. Stedman's Medical Dictionary defines a physician as someone who practices medicine. So the very entity which is establishing guidelines for MUA by definition excludes chiropractors in New York. The clear implication is that MUA is to be performed by physicians and not chiropractors unless physician has some other connotation.

The facts of this case trigger another line of inquiry to be addressed. The MUA's were performed in New Jersey. The first question to be asked would be could a licensed New York chiropractor perform MUA in New Jersey? It would seem that to perform any chiropractic services in New Jersey, like most professions, the chiropractor would have to be licensed there. Plaintiff's submitted copies of their New Jersey registration certificates indicating that they are permitted to perform MUA in New Jersey. It also appears that the definition of chiropractic services in New Jersey is much broader than that in New York. In fact, in New Jersey [*14]chiropractors can have the title "chiropractic physician." However, they are not included in the definition of the practice of medicine and surgery [NJSA 45:9-5.1]. Neither side provided any information as to whether MUA would qualify as "surgery" in New Jersey. It does appear that chiropractors in New Jersey may be permitted to perform surgery such as MUA under a different statue.

The New Jersey statute provides: "No licensed chiropractor shall...perform surgery as requires cutting by instruments or laser excepting adjustment of the articulations of the spinal column or extremities"[NJSA 45:9-14.5(b)]. The definition of chiropractic in that statutory section specifically includes manipulation of the soft tissue of the body, as well as the spine and other joints so, presumably MUA would be a permitted practice in New Jersey. This definition is far more liberal than that of the New York statute. In fact case law in New Jersey holds that whether a chiropractor can do adjustments beyond the spinal area mus be addressed in a case by case basis [Bedford v Riello, 195 NJ 210 (2008)].

Unfortunately, for the plaintiffs, the claim arose from an accident in New York, the patient resides in New York and the claim is filed under the New York State Insurance Law. So the New York definitions as to the scope of the services that a chiropractor may provide and not the law of the situs of the service determines whether the plaintiffs are entitled to payment for the MUA. This is not the place to continue the debate from "Gypsy" as to whether New York is the center of the world as asserted by Miss Cratchitt or New York is the center of New York as Mama Rose alleges.

It must be concluded that as the New York statute is written, chiropractors cannot treat areas of the body outside of the spinal column unless there is a direct link between the pain in that area and a problem which manipulation of the spinal column can alleviate. Plaintiffs have failed to establish that Flores' treatment by an MUA was related to the automobile accident.

C. "This is another fine mess you've gotten me into."

Without the assistance of Stan Laurel, no-fault insurance in New York is clearly in need of reform. Since the Civil Court began tracking these cases in 2006, the number of cases brought in New York City has exceeded 200,000 or about 25% of the court's case load. It does appear that the number of filings has declined in 2011 & 2012 to less than 200,000 cases. The court must wonder what is in the economic structure of this system where health care providers are willing to not be paid for services they previously rendered to a patient and then to have to litigate the issue in the hope that some percentage of the claims will be settled or paid after prevailing at a trial. And again the court is only seeing the claims that result in litigation. It excludes claims that are not pursued at all or wind up in arbitration. Is the reimbursement rate for no-fault so high when compared to other insurance payments that it is economically feasible to absorb so many unpaid claims? It must be questioned why highly trained professionals are so willing to work for free. [*15]

On the other hand, why would the insurance industry continue to want to have a system in place which is litigation generating with all its attendant expenses by its very nature? The cost of trying cases must be less than paying the claims or else they would be seeking to remedy the system.

In no-fault land carriers assert the "Goldilocks Rule" in regard to diagnostic testing. Health care providers are only paid if the test is not performed "too early" or "too late" but "just right." Also where else but in no-fault land do you get to have two attorneys trying cases-with doctors as witnesses- where the amount in controversy is less than the cheap seats at Yankee Stadium?

Ironically, no-fault uses the workers' compensation fee schedule to pay health care providers. Yet, by statute, workers' compensation requires pre-approval of all non-emergency treatments something that for some unknown reason is missing from the no-fault law [Workers' Compensation Law Article 2; 12 NYCRR §325-1.4]. Actually there is nothing in the no-fault law which precludes obtaining pre-approval before rendering non-emergency treatment so why not require it by contract? Unless of course the terms of the entire no-fault contract is generated by the State Insurance Department and because those regulations do not include pre-approval it is barred.

Also, worthy of comparison is the language of Education Law §6731 covering physical therapists. It limits treatments by a physical therapist to ten visits or thirty days if the treatments were "without referral from a physician, dentist, podiatrist, nurse practitioner or licensed midwife...."[Education Law §6731(d)]. Absent from the list are chiropractors. No similar treatment restriction is found in regard to treatment by chiropractors in Education Law Article 132.

Adoption of either of these standards to no-fault insurance claims would reduce the amount of this litigation.

Part of the problem apparently is the inability of the legislature to consistently apply the language of its own statutes. Under the Education Law Article 131, only physicians practice "medicine" and only medical doctors may be referred to as a "physician." Chiropractors do not practice medicine and are not physicians. The fact that the legislature does not adhere to its own statutes is obvious when the no fault law is read [Insurance Law Article 51]. Insurance Law §5102 defines "basic economic loss" under the no-fault law as (1) All necessary medical expenses incurred for:(i) medical, hospital(...)surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical therapy(provided that treatment is rendered pursuant to a referral) and occupational therapy and rehabilitation; (iii) non-medical remedial care and treatment in accordance with a religious method of healing recognized by the laws of this state; and (iv) any other professional health services; all without limitation as to time provided within one year after the date of the accident causing the injury if it is ascertainable that [*16]further expenses may be incurred as a result of the injury.

A reading of the above section would lead to the conclusion that chiropractors are not covered by the no-fault statute as they are the only health service provider governed by Education Law, Title VIII, the "Professions" other than veterinarians and mid-wives not mentioned in the Insurance Law. The only way to include chiropractors is to say that they are covered in the"any other professional health services" of the statute. Considering all the other licensed professions are mentioned specifically and chiropractors have been licensed in New York from a time before the no-fault law was enacted, what the legislature intended must be questioned. Early cases interpreting the no-fault statutes held that if the language of the statute was followed, chiropractic services were not covered. Other courts held that the broadest definition of "medical" should be applied and that it obviously included chiropractors. This of course is a complete rewriting of the law defining medicine by the courts.

It should also be noted that chiropractors are not specifically mentioned in the Workers' Compensation Law §13 as persons who could provide treatment to an injured worker and a separate section was added to include chiropractors [WCL §13-l].

It is clear that almost all of the current no-fault litigation in the court system could be eliminated by requiring "pre-approval" of all non-emergency care. Such a procedure would eliminate legitimate health care providers having to work for free when a claim is denied and would allow insurance carriers to investigate fraudulent claims beforehand and not after the fact.

MUA is the "icing on the cake," "cherry on top," or "gold ring on the merry-go-round" of the irrationality of the current no-fault system. MUA has the potentiality of generating five different lawsuits; one from each of the two chiropractors involved; one from the anesthesiologist; one from the pre-screening physician and one from the facility. Each suit could be brought in a separate county in New York City because the jurisdiction of the Civil Court is citywide and insurance carriers cannot claim they are not present in a particular county as they do business in them all. This situation would potentially result in five different rulings, or at a minimum two different ones such as the screening facility gets paid and the chiropractors do not.

Where else but in no-fault land can you have the situation where the chiropractor testifying is the same person who determined the corrections he has been giving are not working so that he can recommend a more aggressive treatment-requiring anesthesia and a surgical setting, to be performed by him, and who after it is done proclaims it a success. In no-fault land the patient who received the services never testifies. The court is only presented with the self-serving recommendation for the MUA and the self-serving conclusion that it was successful.

It would seem that the carrier would seek permissive joinder of these claims under CPLR §1002 as in theory, it is in the best position to know if it is being sued in different jurisdictions in regard to claims arising from the same occurrence or at a minimum should have the ability to check its own records to obtain that information. Why carriers apparently refuse to do so cannot [*17]be explained.

D. Did plaintiffs prove their prima facie case?

Where a plaintiff provider, as here, proves that completed claims forms have been submitted to the defendant carrier setting forth the fact and the amount of the services provided and the loss sustained, and that payment of the no-fault benefits are overdue, the provider establishes a prima facie case of medical necessity [West Tremont Medical Diagnostic, PC. V Geico Insurance Co., 13 Misc 3d 131(A), (2006)]. However, "[w]here the defendant insurer presents sufficient evidence to establish a defense based on a lack of medical necessity, the burden shifts to the plaintiff which must then present its own evidence of medical necessity" [id., citing Prince Richardson on Evidence §§3-104. 3-202 (Farrell 11th ed.); see also Delta Diagnostic Radiology, PC v American Transit Insurance Co., 2007 Slip Op. 52455(U)].

The court found defendant's expert, Bogdan, to be a credible witness. The witness' testimony sufficiently demonstrated that the treatment at issue was not chiropractically necessary. This shifted the burden back to the plaintiff to show that the treatments were chiropractically necessary. Although Grosso testified, the court concludes that his testimony was insufficient to establish that any chiropractic treatment, let alone MUA, of Flores was necessary after the services were terminated by defendant after receipt of Bogdan's ICE report.

The cause of action of each plaintiff therefore must be dismissed.

Conclusion:

For all of the reasons above, plaintiffs causes of action in both cases are dismissed. Chiropractors are prohibited from performing MUA in New York. In addition, plaintiffs failed to establish that the patient's injuries were causally related to the motor vehicle accident and that a physician screened the patient before the MUA was performed. Plaintiffs failed to establish that the MUA was chiropractically necessary.

Even if the court were to determine that MUA was chiropractically necessary the plaintiffs are not permitted to collect the full CPT Code rate they are restricted to 68.4% of the relative value unit allowable for medical doctors [New York State Workers' Compensation Board Office of General Counsel letter August 14, 2009; see also Flatbush Chiropractic, PC v Metlife Auto & Home, 35 Misc 3d 1203(A) 2012].

Again this is not to say that properly trained chiropractors should not be prohibited from performing MUA. It is the function of the legislature to expand the definition of the chiropractic profession and not the court system.

Exhibits, if any, will be available at the office of the clerk of the court thirty days after receipt of a copy of this decision. [*18]

The foregoing constitutes the decision and order of the court.

Dated: August 16, 2012_________________________

Staten Island, NYHon. Philip S. Straniere

Judge, Civil Court Footnotes

Footnote 1: One of the versions of "Dem Bones" also known as "Dry Bones" or "Dem Dry Bones" an often recorded folk song attributed to James Weldon Johnson.

Footnote 2: Also for some reason Bogdan "affirmed" his report and did not have it notarized. CPLR §2106 sets forth who can affirm documents rather than having to locate a notary and chiropractors are not on that list. This makes Bogdan's independent chiropractic evaluation inadmissible in this action. The question of whether an insurance carrier such as Allstate can rely on the report to terminate services is not addressed in the CPLR as it applies only to reports being used for a "pending" action and no action was pending when the report was prepared. Absent a section of the Insurance Law or an Insurance Department regulation requiring a carrier to have an affirmation/affidavit in order to deny coverage, it is apparent that Allstate could use the improperly affirmed report to terminate chiropractic services. Neither side presented any law on this question. Allstate avoided the issue at trial by having Bogdan testify and be subject to cross-examination on what records he reviewed and the extent of the ICE.

Footnote 3: Ironically, there does not appear to be a definition in any New York statute or administrative rule as to what constitutes surgery. Apparently New York believes that it does not know exactly how to define surgery but knows what it is when it sees it.

Footnote 4: An elephant on a motorcycle is not an acceptable alternative response.