Andrew Carothers, M.D., P.C. v GEICO Indem. Co.
Annotate this CaseDecided on March 10, 2008
Civil Court of the City of New York, Kings County
Andrew Carothers, M.D., P.C., a/a/o Raphael Martinez, Plaintiffs,
against
GEICO Indemnity Company, Defendant.
029706/06
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. There were five (5) assignors represented by Plaintiff.
Defendant's denial was based on lack of medical necessity as to all five assignors. At trial, the
parties stipulated that all five cases would be tried together wherein Plaintiff would seek to
establish its prima facie entitlement to payment and Defendant would seek to establish its timely
denial of the claim.
To establish its prima facie case, Plaintiff called its Billing Manager, Paul
Kumc-Jasinsk, as its first witness. Mr. Kumc-Jasinsk testified that he has been a Billing Manager
since June, 2005. Mr. Kumc-Jasinsk provided detailed and explicit testimony as to his personal
knowledge of Plaintiff's routine office practice and procedures regarding the timely mailing of
the bills and the fact that payment had not been received. Based on the Billing Manager's
testimony, the Court finds that Plaintiff has established its prima facie case.
Defendant's Claims Examiner, Kathleen McClernon, also provided detailed and
explicit testimony as to her personal knowledge of Defendant's routine office practice and
procedures regarding mailing of its denial of claim. Based on the Claims Examiner's testimony,
the Court finds that Defendant has established proof of timely denial of the claims in question.
The parties having established Plaintiff's prima facie case and Defendant's timely
denial, the only issue before the court was whether the medical services provided 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 (see 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 [*2]1018(A),
801 N.Y.S.2d 229 [Civ. Ct. Kings Co. 2005]).
A no-fault insurer defending a denial of first party benefits on the ground that the
billed for services or equipment/supplies were not medically necessary must show that the
services or supplies/equipment provided were inconsistent with generally accepted
medical/professional practices. The opinion of the insurer's expert, standing alone, is insufficient
to carry the insurer's burden of proving that the services or supplies/equipment were not
medically necessary (see CityWide Social Work & Psychological Services v. Travelers Indem.
Co. 3 Misc 3d 608 [Civ. Court Kings County 2004]; Ultimate Medical Supplies v. Lancer
Insurance Co. 7 Misc 3d 1002(A)[Civil Court Kings County 2004]; Expo Medical Supplies, Inc.
v. Clarendon Insurance Company 12 Misc 3d 1154 (A), 819 N.Y.S.2d 209, 2006 WL 1341418).
At trial, the Defendant bears the burden of production and the burden of persuasion for its claim
of lack of medical necessity (see Expo medical Supplies, Inc. v. Clarendon Insurance Company
supra; A.M. Medical Services v. Deerbrook Insurance Co., Slip Copy, 2008 WL 518022
(N.Y.City Civ.Ct.), 2008 NY Slip Op. 50368(U)).
To sustain its burden of proof, the Defendant sought to lay the foundation for the
admissibility of the original peer review report and medical records received by Defendant. These
records were relied upon by Defendant's medical expert in forming the conclusion that the
services rendered were not medical necessary. Defendant sought to introduce the records and
peer review report into evidence through its Claims Examiner as Defendant's business records.
Plaintiff objected to their admission into evidence arguing that the Claims Examiner was
incompetent to testify as to the reliability of the records as she testified that the records were
received by Defendant from the treating physicians and she had no knowledge of how these
doctors created or maintained their records in the regular course of business. Defendant argues
that the documents relied upon by its medical expert were the MRI reports of the claimants
which accompanied the Plaintiff's bills and the various medical reports of the claimants
considered by the Regulations as a Proof of Claim.
The subject records were prepared by Plaintiff's own principal(s) who treated the
claimants and conducted the tests in questions. In these circumstances, Plaintiff may not be heard
to argue that the Defendant's expert opinion was not derived from a professional reliable source
or to otherwise challenge the reliability of its own medical records and reports which were used
as proof of its claim. Moreover, Defendant's expert, in forming his opinion, relied upon the
records only to the extent that they documented the claimants' injuries, Plaintiff's diagnosis and
the treatment rendered (see Cross Continental Medical, P.C. v. Allstate Insurance Company, 13
Misc 3d 10, 822 N.Y.S.2d 356, 2006 NY Slip Op. 26322; Home Care Ortho Medical Supply,
Inc. v. American Mfrs. Mut. Ins. Co., 14 Misc 3d 139(A), 836 N.Y.S.2d 499, 2007 WL 581912
(NY Sup. App. Term) 2007 N.Y.Slip Op 50302(U)). Based on the above, the Court rejects the
Defendant's argument and finds that the medical records and peer review reports are admissible
and are accepted into evidence.
The Defendant must now establish a factual basis and medical rationale for its claim
of lack of medical necessity (see Nir v. Allstate Insurance Co., 7 Misc 3d 544, 796 N.Y.S.2d 857
[Civ. Ct. Kings Co. 2005]). Defendant's medical expert Dr. Andrew Bazos testified that he
reviewed the [*3]medical records and reports of all five claimants
and that he had sufficient information to render an opinion as to whether the services rendered
were medically necessary. Dr. Bazos testified that based on the type of injuries, (all soft tissue)
and the time frames involved in the testings, (less than one month after the accident) the MRIs as
to all five claimants were unnecessary and inconsistent with accepted medical standards and
practice. Dr. Bazos further testified that where there is soft tissue injuries, time is a factor in
ordering MRIs; that 99% of patients with soft tissue injuries usually heal with physical therapy
within six weeks to six months after an accident and that there should be a minimum of three
months of physical therapy before ordering MRI tests. Dr. Bazos asserted that a course of
conservative treatment of anti-inflammatories and physical therapy would have resulted in a
favorable outcome for each of the five claimants herein. Accordingly, the Court finds that Dr.
Bozos testimony was sufficient to demonstrate a medical rationale and factual basis for his claim
of lack of medical necessity.
Once Defendant insurer presents sufficient evidence to establish a defense based on
lack of medical necessity, the burden shifts to the Plaintiff to present its own evidence of medical
necessity (see Prince, Richardson on Evidence §3-104, §3-202 [Farrell 11th ed];
West Tremont Medical Diagnostic, P.C. v. Geico Ins. Co. (see 13 Misc 3d 131(A), 824 N.Y.S.
2d 759[2006]) In the case at bar, Plaintiff did not call any witnesses but relied upon its cross
examination of Dr. Bozos to defend its claim of medically necessity. The Court finds that
Plaintiff has failed to refute Defendant's expert witness testimony and has failed to produce
rebuttal evidence to prove medical necessity for the services rendered.
Accordingly, judgment is hereby rendered for Defendant. Plaintiff's summons and
complaint are dismissed.
Defendant shall serve a copy of this Decision and Order with Notice of Entry upon
the appropriate clerk and the Plaintiff within 20 days hereof.
This constitutes the Decision and Order of the Court.
Dated: March 10, 2008
___________________________________
SYLVIA G. ASH, J.C.C.
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