A.M. Med. Servs., P.C. v Deerbrook Ins. Co.
Annotate this CaseDecided on February 25, 2008
Civil Court of the City of New York, Kings County
A.M. Medical Services, P.C., a/a/o Nataliya Bulakh, Plaintiff,
against
Deerbrook Insurance Co., Defendant.
56006/04
Plaintiff: Alan Banniettis, Esq.
2972 Avenue X
Brooklyn, NY 11235
(718) 648-8300
Defendant: Bruno Gerbino & Soriano, LLP
By: Akwei O. Acquage, Esq.
445 Broad Hollow Road
Suite 220
Melville, NY 11747
(631) 390-0010
Sylvia G. Ash, J.
Plaintiff brought this cause of action seeking recovery of first party no-fault benefits for
medical services rendered to its assignors in connection with injuries sustained as a result of an
automobile accident. Plaintiff is a health care provider and Defendant was the no-fault insurance
carrier at the time the accident occurred. The amount at issue is $4,151.98. Based on the
testimony and evidence adduced at trial, the Court makes the following findings of fact and
conclusions of law.
[*2]
At trial, the parties stipulated to the
Plaintiff's prima facie case and the timely denial of the claim. The Defendant asserted that
Plaintiff was not entitled to recover for the services rendered, specifically, the performance of
EMG and NCV studies of the upper extremities.
The only issue before the Court was whether these studies were medically necessary.
At trial, the Defendant bears the burden of production and the burden of persuasion
for its claim of lack of medical necessity of the treatment or testing for which payment is sought
(see Nir v. Allstate Insurance Company, 7 Misc 3d 544, 796 N.Y.S.2d 857 [Civ. Ct. Kings Co.
2005]; Expo Medical Supplies , Inc. v. Clarendon Insurance Company, 12 Misc 3d 1154(A), 819 N.Y.S.2d 209 [Civ. Kings Co. 2006]; A.R. Medical Art, P.C. v. State Farm Mutual Automobile
Insurance Company, 11 Misc 3d 1057(A), 815 N.Y.S.2d 493 [Civ. Ct. Kings Co. 2006]; A.B.
Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance Company, 7 Misc 3d
1018(A), 801 N.Y.S.2d 229 [Civ. Ct. Kings Co. 2005]).
To sustain its burden of proof, Defendant presented two witnesses, Dr. Jeffery Perry
and Dr. Patrick Corcoran, whom the parties stipulated to be experts in the field of Physical
Medicine and Rehabilitation & Pain Management.
Dr. Perry testified that in preparing his peer review report, he reviewed the treating
physician's report as well as the EMG and NCV reports. That it was his medical opinion that the
EMG and NCV tests were not medically necessary because said tests are usually performed to (a)
impact the care that the patient would receive (b) impact the results of the patient's treatment ( c)
when you are not sure of the course of treatment to take and (d) when there is a decline in the
patient's neurological performance. Dr. Perry stated that in this case, there was nothing in the
patient's records to indicate that the patient had a prior medical condition and that it was his
opinion that the treating physician did not need to do the test or utilize the performance of the test
to impact the care and treatment which the patient was already receiving. He further stated there
was no indication that the patient had underwent radiological studies of any kind, which would
have necessitated the performance of the test.
On cross examination, Dr. Perry acknowledged that a patient's prior trauma and
treatment is relevant for diagnosis and treatment and that the patient's treating physician is always
in the best position to prescribe care and treatment for the patient. However, where there is no
mention of any prior trauma or medical condition, if a patient came to him with the same
complaints as the patient herein, he would not have ordered the subject tests. Dr. Perry testified
that as a treating physician, he has done EMGs on patients where payment had been denied based
on the reviewing physician deeming the tests to be medically unnecessary. That in such cases,
when necessary, he would provide additional information to the reviewing physician to explain
his rationale for ordering the tests. Dr. Perry further stated that as a reviewing physician, if he
gets a letter from the treating physician explaining the rationale for the tests, the vast majority of
times, he would alter his opinion. [*3]In this case, Dr. Perry
stated that the records he received and reviewed were sufficient for him to form a medical
opinion of lack of medical necessity.
Dr. Patrick Corcoran testified that he also reviewed the treating physician medical
records as well as the EMG and NCV reports. He stated that the records revealed that the patient
was a 24 year old female, with no prior medical problems, who was involved in an automobile
accident on January 21, 2001. That the patient's symptoms were evidence of radiculopathy which
is an indication that something is wrong with the root of the nerve. That the treating physician
did not need the EMG and NCV studies to prevent an injury, to make a diagnosis or to formulate
a treatment plan. That the records revealed that the treating physician had all the information
needed to form a diagnosis and that the results of the electro-diagnostic studies were the same as
the conclusion drawn from the patient's physical examination.
On cross examination, in answering the question whether he inquired from the
treating physician if the patient had a prior medical condition, Dr. Corcoran responded that there
was no mention in the patient's records of a prior medical condition and that there is a saying in
medicine that "If you didn't write it, you didn't do it." Dr. Corcoran concluded that based on the
treating physician's report and the physical examination, it was clear that the subject tests were
not medically necessary. Dr. Corcoran further stated that he had sufficient information from the
records provided to form a medical opinion of lack of medical necessity.
It is well settled that the function of the No-Fault Law is to expedite payment of
claims (See 1973 NY Legis Ann, at 298). The Court of Appeals have found that "the regulations
are written to encourage prompt payment of claims, to discourage investigation by insurers and to
penalize delays." (see Dermatossian v. New York City Tr. Auth., 67 NY2d 219 [1986]; Zydyk v.
New York City Tr. Auth., 151 AD2d 745 [2d Dept. 1989]; Fifth Avenue Pain Control
Center v. Allstate Insurance Company, 196 Misc 2d 801, 766 N.Y.S.2d 748 [2003].
Upon receipt of a claim, the insurer is required by both statute and regulation to pay or deny a
claim within 30 days of receipt of the claim (see NY Ins. Law §5106(a); 11 N.Y.C.R.R.
§65-3.8(a)(1)). An insurer may extend this 30-day period if, within 15 business days after
receipt of the claim, the insurer sends a request for verification (see 11 N.Y.C.R.R.
§65-3.5(b)). The 30-day period does not begin to run until all demanded verification is
received (see N.Y.C.R.R. §65-3.8(a)(1)). Where the claim asserted is for payment for
medical services, and the documents requested in the verification process are the patient's
medical records, to put the onus on a Defendant to request additional verification will
unnecessarily prolong the time within which a determination can be made by the insurer as to
whether a claim should be paid or denied. The Defendant insurer is not obligated to seek further
verification where its medical expert testified that there was sufficient information to form an
opinion (see Amaze Med. Supply Inc. V. Travelers Prop. Cas. [*4]Corp., 7 Misc 3d 128[A], 2005 Slip Op 50452[U] [App Term, 2d &
11th Jud Dists]; All County Open MRI & Diagn. Radiology P.C. v. Travelers Insurance Co., 11
Misc 3d 131(A), 815 N.Y.S.2d 493, 2006WL 543132 (N.Y.Supp.App.Term)[2006]).)
To meet its burden, at a minimum, the Defendant must establish a factual basis and
medical rationale for its asserted lack of medical necessity of Plaintiff's services (see CityWide
Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Co., 3 Misc 3d 608, 777 N.Y.S.2d 241, 2004 NY Slip Op. 24034 [Civ. Ct., Kings County 2004]; Nir v. Allstate Insurance
Company, supra; A.B. Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance
Company, supra). At trial, the defense that a claim was not medically necessary must be
supported by sufficient factual evidence or proof and cannot simply be conclusory (see
Williamsbridge Radiology & Open Imaging v. Travelers Indemnity Company, 14 Misc 3d 1231
(A), 2007 NY Slip Op. 50224(U)) In the case at bar, both Defendant's medical experts were very
specific and detailed in explaining the basis for their medical opinion of lack of medical
necessity. Both doctors testified that their opinion was based on the information contained in the
medical reports received from the Plaintiff. That there was no mention in said medical reports
that the patient had any prior trauma or medical condition to warrant performance of the tests,
and that they had sufficient information from the records they reviewed, to form a basis of lack of
medical necessity.
The issue before this Court is whether the tests ordered were medically necessary. As
stated above, the burden is on the Defendant to establish that the tests in question were not
medically necessary. This determination is made after a review of the patient's medical records
by the Defendant's reviewing medical expert. It is therefore important that the patient's entire
medical records be submitted for review. In most cases, the Defendant's medical expert do not
examine or have any personal contact with the patient. The opinion contained in the Defendant's
medical expert's peer review report is based primarily on a review of the patient's medical records
received from the Plaintiff. The Plaintiff is aware that the records submitted to the Defendant's
medical expert would be used as the basis for determining whether the tests ordered were
medically necessary. Therefore, it is incumbent on the Plaintiff to submit the patient's entire
records including the patient's medical history and all ancillary information used by the treating
physician to make the determination that the tests ordered are medically necessary for the
treatment and care of the patient.
Plaintiff argues that both Defendant's medical experts acknowledged that a patient's
medical history would impact his or her care and treatment. That Defendant's medical experts
should have requested additional information from the Plaintiff to ascertain whether the patient
had a history of prior trauma or medical condition. That if Defendant's medical experts had
information on the patient's medical history, their opinion would have been different. The Court
finds that the Defendant should not have to question whether there are additional records or
information of the patient that would assist the Defendant in forming a medical opinion as to
whether the tests performed were medically necessary. That the Defendant should not have to
question whether the information received are the complete records of the patient in question.
[*5]
The Court notes that contrary to the Plaintiff's
contention, this is not a case where the reviewing doctors considered the information in their
possession insufficient to formulate a medical necessity determination (see Amaze Medical
Supply Inc. v Allstate Insurance Co., 12 Misc 3d 142(A), 824 N.Y.S.2d 760; Hempstead
Turnpike Open MRI and Imaging v. Progressive Insurance Company, 12 Misc 3d 137(A), 824 N.Y.S.2d 763, 2006 WL 1865021)). On the contrary, it is the Defendant's contention that the
medical records received contained sufficient information to enable them to form a medical
opinion on the issue at bar. It is also Defendant's contention that the fact that there was no
mention in said records of the patient's medical history, established that either the patient did not
have a prior medical history or that said history was not a factor that was considered in
determining the patient's treatment and diagnosis. The Court credits Defendant's testimony and
finds that Plaintiff's rationale is inconsistent with the legislative intent that no-fault claims be
expeditiously paid.
Plaintiff presented no witnesses at trial. Therefore, based on the unrebutted
testimony of Defendant's medical experts and the peer review report, it is this Court's finding that
Defendant has met its burden of establishing lack of medical necessity. Where the Defendant
insurer presents sufficient evidence to establish a defense based on lack of medical necessity, the
burden shifts to the Plaintiff who must then present its own evidence of medical necessity (see
Prince Richardson on Evidence §3-104, 3-202 [Farrell 11th ed]; Delta Medical Supplies,
Inc. v. NY Central Mutual Insurance Co., 14 Misc 3d 1231 (A) [2007]). By failing to produce
any witness(es) at trial, Plaintiff has failed to meet its burden.
Accordingly, the Plaintiff's complaint is hereby dismissed. This constitute the
Decision and Order of the Court.
February 25, 2008__________________________
SYLVIA G. ASH, J.C.C.
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