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The Rogak Report: 30 Nov 2007 ** No Fault - Trial Practice **

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  • Lawrence Rogak
    Message 1 of 1 , Nov 30, 2007


      Kings Highway Diagnostic Imaging, P.C. a/a/o Nancy Valle v. Autoone Ins. Co.
      2007 NY Slip Op 52253(U)
      Decided on November 27, 2007
      Civil Court Of The City Of New York, Kings County
      Ash, J.
      Edited by Lawrence N. Rogak

      This post-trial court decision provides a useful insight into the dynamics at trial where a no-fault insurer produces an expert to establish the lack of medical necessity of the treatment at issue, and the plaintiff then puts on a rebuttal witness.

      Plaintiff is a health care provider and Defendant was the no-fault insurance carrier at the time the accident occurred. The amount at issue was $1,791.00. 

      The parties stipulated to Plaintiff's prima facie case and Defendant's timely denial of the claim. The only issue to be decided by the Court was whether the MRI tests of the assignor's cervical and lumbar spine were medically necessary. Defendant bore the burden of proof on this issue, to establish by admissible evidence its belief that the services rendered were not medically necessary.

      At trial, Defendant called Dr. Michael N. Berke, a Chiropractor. Dr. Berke testified that based on his examination of the assignor and review of the medical records he found no objective findings of spasm, no positive orthopedic tests or radicular complaints to justify the MRIs. The Plaintiff called Dr. Michael Walsh, a Neurologist, as its rebuttal witness. Dr. Walsh testified that he reviewed the treating physician's medical report and that based on the assignor's complaints, the MRIs were medically necessary. 

      "The parties have submitted post trial memorandums. Defendant argued that Dr. Berke examined the assignor one day after the cervical MRI and three days prior to the lumbar MRI; that the assignor had no complaints of radiating pain at that examination; that based on Dr. Berke's examination and his review of the medical report of the treating physician, Dr. Abbot, the MRIs were not medically necessary at the time when they were performed. Dr. Berke stated that his opinion is based on what is reasonable and customary in the medical field as well as his twenty (20) years of practice as a Chiropractor."

      "The Plaintiff argued that the assignor's complaints included radiated pain from the neck to the head, to the arms and the left lower extremity.  Dr. Walsh testified that the Spurling test was positive, that there was restricted range of motion and spasm in the cervical spine, that the MRI test is considered as the goal [sic] standard to determine injury to the cervical and lumbar spine and therefore, the MRIs were appropriate to determine any possible permanent injury to the spine."

      "In determining whether services are not medically necessary, the Court is concern [sic] with proof demonstrating that the services were not reasonable in light of the patient's injury, subjective and objective evidence of the patient's complaints of pain, and the goals of evaluation and treatment of the patient. When a treating physician prescribes necessary medical services, that patient should receive those services promptly without the need of committee or board approval.  A review of the history behind No-Fault Law clearly demonstrates a preference for expedient review of claims with an eye towards benefitting the insured. Therefore, any uncertainties concerning the reasonableness of the services are to be resolved in favor of coverage."

      "Here, the Court finds that the Defendant's medical evidence demonstrated that the services were not medically necessary. However, Plaintiff has sufficiently rebutted Defendant's medical testimony and has demonstrated the medical necessity of its claims. Dr. Walsh testified that based on the assignor's age, complaints of back and neck pain and the findings of various objective tests, it was medically necessary to perform the MRI to determine if there was structural damage to the assignor's cervical and lumbar spine.  Accordingly, judgment is entered in favor of the Plaintiff in the amount of $1,791.00 with statutory interest, costs and attorney fees." 

      Comment:  A better cross-examination of plaintiff's expert might have succeeded in undercutting his rebuttal testimony -- and it often has.   There are specific protocols and criteria for establishing the proper use of MRIs, and a defense attorney familiar with those protocols can often establish that the prescribing of an MRI in a particular case was not in compliance with generally accepted medical practice.

      Larry Rogak


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