American Chinese Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.
Annotate this CaseDecided on February 6, 2008
Civil Court of the City of New York, Richmond County
American Chinese Acupuncture, P.C. AAO MARIA TAVAREZ, Plaintiff,
against
State Farm Mutual Automobile Insurance Company, Defendant.
023996/06
Counsel for Plaintiff:Baker, Sanders, Barshay, Grossman, Fass, Muhlstock
& Neuwirth
150 Herricks Road
Mineola, NY 11501
516-741-4799
Counsel for Defendant:Samuel G. Lesman, Esq.
Melli, Guerin & Wall, P.C.
17 Battery Place
Suite 610
New York, NY 10004
212-509-6300
Katherine A. Levine, J.
In the instant matter the assignor Maria Tavarez ("Tavarez" or "claimant") of plaintiff American Chinese Acupuncture, P.C. ("plaintiff"), was allegedly injured in an automobile accident on or about December 21, 2003. Tavarez assigned the cost of her six sessions of acupuncture treatment, in the amount of $257.04, to plaintiff health care provider. At the trial held on January 9, 2008, the parties stipulated to plaintiff's prima facie case and defendant's timely denial of the claim. Therefore, the only issue presented to the court was whether the six sessions of acupuncture sessions in March 2004 were medically necessary.
A presumption of medical necessity attaches to a defendant's admission of the plaintiff's timely submission of proper claim forms, and the burden then switches to the defendant to demonstrate the lack of medical necessity. 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);A.B. Medical Services v. NY Central Mut. Fire Ins. Co., 7 Misc 3d 1018(A), 801 N.Y.S., 2d 229 (Civil Ct. Kings. Co. 2005); Citywide Social Work & Psychological Services v. Travelers Indemnity, 3 Misc 3d 608, 609 (Civil Ct., Kings Co. 2004).
The parties stipulated into evidence the verification of treatment form ("NF3") which indicated that Tavarez's diagnosis and concurrent conditions were pain - neck (cervicalgia) and pain - low back (lumbalgia). Defendant presented the testimony of Dr. Joseph Kalangie who is a diplomate and board certified in physical medicine and rehabilitation. Dr. Kalangie performed an independent medical examination ("IME") upon Tavarez approximately six weeks after her accident. The claimant informed him that several days after the accident she sought medical treatment due to headaches, pain in the neck, lower back and both shoulders. She also indicated she was placed on a regimen of physical therapy and other treatments, including acupuncture four times a week. She indicated that she currently had headaches, pain in the [*2]lower back and pain in both shoulders.
Dr. Kalangie's IME of Tavarez revealed that the cervical and lumbar strain/sprain, as well as the bilateral shoulder contusion, had resolved. Specifically, the doctor examined the cervical spine and found no sensory deficit or motor weakness of the upper extremities. There was no complaint of any radiation of pain. He also examined both shoulders and found normal rotation and no instability of the joints Finally, he examined the lumbosacral spine and found no complaints of tenderness and normal range of motion and no atrophy.
Based on his examination he opined that treatment had been reasonable, related and necessary from a physiastrist point of view and that there was no need for further chiropractic care and acupuncture treatment. Since all the alleged injuries due to the accident had been resolved, there was no need for any type of further formal treatment.
On cross examination, Dr. Kalangie stated that he was not a licensed acupuncturist and he does not perform and has no training in acupuncture. He opined that acupuncture provides relief to pain and admitted that Tavarez was complaining of pain.He did not have her medical records at the time of the exam and did not request the records even though he could have. He does, however, review other medical records when he himself is the treating physician of patients in auto accidents. 25-30% of his income is derived from peer reviews and IMEs. In 75% of the cases he does not find medical necessity.He typically spends 20-30 minutes on an IME.
In response to questions posed by the court, the doctor indicated that pain is subjective and that his findings as to the shoulders and spine were objective. He did not assess the complaints of headaches since that was outside of his realm of expertise.
Defendant contends that it has proven lack of medical necessity and it therefore is not responsible for the $257.00 charged by plaintiff. It pointed out that plaintiff offered no rebuttal. Plaintiff posits a number of grounds as to why the doctor's testimony should not be credited, only one of which this court finds determinative: that the doctor is under an obligation to state the generally accepted medical practice and expertise in treating claimant and how plaintiff deviated from this practice.
This court finds that the defendant's proof fails to prima facie demonstrate the lack of medical necessity for the treatment in question. Fatally missing from the doctor's testimony is any mention of the applicable generally accepted medical/professional standard and the plaintiff's departure therefrom. In the leading case of Services v. Travelers Indemnity, Citywide Social Work & Psychological, 3 Misc 3d 608, 609 ( Civil Ct., Kings Co. 2004), Justice Battaglia succinctly stated:
"A no-fault insurer defending a denial of first-party benefits on the
ground that the billed-for-services were not medically necessary'
must at least show that the services were inconsistent with [*3]
generally accepted medical/professional practice. The opinion
of the insurers's expert, standing alone, is insufficient to carry the
burden of proving that the services were not medically necessary."
See , Acupuncture Prime Care v. State Farm Mutual Auto, supra .A generally
accepted medical/professional practice has been defined as "that range of practice that the
professional will follow in the diagnosis and treatment of patients in light of the standards and
values that define its calling." 3 Misc 3d at 616.; A.B. Medical Services , P.L.L.C., supra
.
Although acupuncture, physical therapy, and chiropractic are distinct modalities of treatment, they could conceivably be used to treat the same condition. Rose Med. Acupuncture Servs. P.C. v. Specialized Risk Mgmt., 2004 NY Slip Op 51078U, 4 Misc 3d 1027A, 798 NYS2d 348 (City Court, Mt. Vernon, 2004). See, Universal Acupuncture Pain Services, P.C. v Lumbermens MutualCasualty Co., 195 Misc 2d 352, 758 NYS2d 795 (Civ Ct. Queens Co. 2003). Thus, where the insurer and medical provider disagree on what should be classified as concurrent care, and a denial is then issued, the dispute should be brought before a court of competent jurisdiction for final resolution on this pivotal issue (See id.).
Here, Dr. Kalangie did not posit that acupuncture and physical therapy constituted concurrent care. Nor did he even address how he would treat Tavarez's complaints of headaches and why acupuncture could not alleviate the subjective pain that she allegedly was suffering. The conclusory opinion of Dr. Kalangie, standing alone, is insufficient to demonstrate the lack of medical necessity.
In conclusion, the court grants judgment in favor of plaintiff.
The foregoing constitutes the decision and order of the court.
Dated:February 6, 2008
Staten Island, NYHON. KATHERINE A. LEVINE
Judge, Civil Court
ASN by ________ on ____________.
A P P E A R A N C E S
Counsel for Plaintiff:Baker, Sanders, Barshay, Grossman, Fass, Muhlstock
& Neuwirth
150 Herricks Road
Mineola, NY 11501
516-741-4799
Counsel for Defendant:Samuel G. Lesman, Esq.
Melli, Guerin & Wall, P.C.
17 Battery Place
Suite 610
New York, NY 10004
212-509-6300
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