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The Rogak Report: 28 Feb 2008 (Part IV) ** No Fault - Medical Necessity -Trial**

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  • Lawrence Rogak
    WHERE PEER OR IME DOCTOR CAN FORM AN OPINION WITH THE RECORDS AT HAND, INSURER HAS NO BURDEN TO ASK FOR ADDITIONAL RECORDS A.M. Med. Servs., P.C. a/a/o
    Message 1 of 1 , Feb 28, 2008
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      WHERE PEER OR IME DOCTOR CAN FORM AN OPINION WITH THE RECORDS AT HAND, INSURER HAS NO BURDEN TO ASK FOR ADDITIONAL RECORDS

      A.M. Med. Servs., P.C. a/a/o Nataliya Bulakh v. Deerbrook Ins. Co.
      2008 NY Slip Op 50368(U)
      Decided on February 25, 2008
      Civil Court Of The City Of New York, Kings County
      Ash, J.
      Edited by Lawrence N. Rogak


      Plaintiff brought this no-fault suit seeking $4,151.98.  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 performance of EMG and NCV studies of the upper extremities.  The only issue before the Court was whether these studies were medically necessary.

      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. 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.

      The Court held, "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.  In the case at bar, both [of] 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 experts 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."  [italics added]

      "Plaintiff argues that both [of] 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." [italics added]

      "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. 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. By failing to produce any witness(es) at trial, Plaintiff has failed to meet its burden.  Accordingly, the Plaintiff's complaint is hereby dismissed."

      Comment:  A very interesting, and well-reasoned, decision.  Too often, judges are persuaded that if the plaintiff's medical records do not provide a rationale for the tests or treatment at issue, the burden is on the insurer to at least ask the provider for same during the verification process.  Here, the judge holds that where the plaintiff's medicals give the IME or peer doctor enough basis to find the tests or treatment unnecessary, the insurer does not have the burden of asking the provider whether there is more documentation which might provide such basis.

      Larry Rogak

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