Opinion
No. CV–025897–10.
2012-06-18
Dr. Deepika BAJAJ, as assignee of Luis Jara, Plaintiff, v. GEICO, Defendant.
Harold Solomon, Esq., New York, Attorney for Plaintiff. The Law Offices of Teresa M. Spina, Woodbury, Attorneys for Defendant.
Harold Solomon, Esq., New York, Attorney for Plaintiff. The Law Offices of Teresa M. Spina, Woodbury, Attorneys for Defendant.
MICHAEL A. CIAFFA, J.
Plaintiff, Dr. Deepika Bajaj, commenced this no-fault action against defendant, GEICO, following denial of her claim for services rendered to Luis Jara after an auto accident. Prior to trial, the parties stipulated that plaintiff's bill had been timely submitted and that defendant's denial was timely. They further stipulated that the only issue for trial was the medical necessity of EMG/NCV testing that had been performed by Dr. Bajaj on June 26, 2007.
Dr. Bajaj's claim had been denied based upon a peer review report, dated August 28, 2007, from Dr. Gary J. Florio. Although the report was marked for identification, plaintiff's counsel would not stipulate to its admission into evidence, and defendant's counsel did not otherwise seek to offer it into evidence. Defendant made no effort to call Dr. Florio as a trial witness. Instead, defendant presented expert testimony from a substitute doctor, Roy H. Brown, M.D.
Pursuant to the parties' stipulation, Dr. Brown's expertise was conceded. However, at the outset of his testimony, plaintiff objected to it on legal grounds. Since Dr. Florio's peer review report had not been admitted into evidence, plaintiff contended that Dr. Brown should be precluded from giving testimony in support of the lack of medical necessity defense. The Court reserved decision on the issue.
Dr. Brown proceeded to give testimony setting forth a factual basis and medical rationale for defendant's lack of medical necessity defense. Based upon his review of the medical records in evidence, and his review of Dr. Florio's peer review report, Dr. Brown stated that he agreed with Dr. Florio's opinion. In Dr. Brown's view, he saw nothing in the medical records which supported the necessity of the tests. Although the medical records established the existence of lumbar radiculopathy, Dr. Bajaj's patient was being adequately treated with conservative therapy. In such circumstances, he contended that the results of the EMG/NCV wouldn't show anything that would have added to the treatment of Dr. Bajaj's patient. Therefore, in his opinion, the test was not medically necessary.
By and large, Dr. Brown's testimony did not go beyond the rationale set forth in Dr. Florio's peer review report. In the few instances where defendant attempted to elicit testimony from Dr. Brown that went beyond the four corners of Dr. Florio's report, plaintiff's counsel maintained that the Court could properly consider Dr. Florio's report for the limited purpose of restricting the scope of Dr. Brown's medical opinion. This Court agreed with plaintiff's contention on this point, and it reviewed the report in the course of Dr. Brown's testimony solely for such limited purposes, and not as evidence in chief.
At the conclusion of Dr. Brown's testimony, plaintiff's counsel renewed his objection to Dr. Brown's testimony and moved for a directed verdict, contending that defendant could not make out a prima facie case for the lack of medical necessity defense without offering the peer review report into evidence. The Court again reserved decision.
Upon further consideration, plaintiff's contention is rejected. While the issue is not free from doubt, see Park Slope Med & Surgical Supply, Inc. v. Metlife Auto & Home, 35 Misc.3d 686, 2012 N.Y. Slip Op 22064 (Civ Ct Queens Co.), current Appellate Term precedent appears to require nothing more than testimony from a medical expert setting forth a facially sufficient factual basis and medical rationale for the defense. The defendant's expert need not be the same person who prepared the peer review report. As long as the substitute doctor can be subjected to cross-examination on the issue of medical necessity, his or her testimony cannot be precluded outright. See Radiology Today, P.C. v. Progressive Ins. Co., 2011 N.Y. Slip Op 51724(U) (App Term 2d Dept); Dilon Med. Supply Corp. v. New York Central Mut. Ins. Co., 2007 N.Y. Slip Op 52454(U) (App Term 2d Dept); Spruce Med. & Diagnostic, P.C. v. Lumberman's Mut. Cas. Co., 2007 N.Y. Slip Op 51104(U) (App Term 1st Dept); Home Care Ortho. Med. Supply, Inc. v. American Mfrs. Mut. Ins. Co., 2007 N.Y. Slip Op 50302(U) (App Term 1st Dept).
In Radiology Today, supra, the Appellate Term reversed a trial court decision which had precluded the testimony of a substitute expert witness, holding that defendant's expert “should have been permitted to testify,” and it did so without reaching the question “of whether the peer review report could have been entered into evidence.” In another recent case, Psychology YM, P.C. v. GEICO, 2011 N.Y. Slip Op 51316(U) (App Term 2d Dept), the Appellate Term held that the Civil Court erred in precluding testimony from defendant's expert witness in a case where the expert's peer review report “was not in admissible form.”
Reading these cases together, a no-fault insurer apparently need not submit the underlying peer review report “in admissible form” at trial in a case where the defendant offers testimony from a substitute medical expert. As long as the substitute doctor's testimony is “limited to the basis for the denial as set forth in the original peer review report,” see Park Slope Med. & Surgical Supply, Inc. v. Progressive Ins. Co., 2012 N.Y. Slip Op 50349(U) (App Term 2d Dept), the plaintiff cannot complain. Any perceived inadequacies in the substitute doctor's testimony can and should be exposed through vigorous cross-examination and/or rebuttal testimony from the treating doctor or another expert.
This Court, like many of its colleagues, have often viewed the testimony of substitute peer doctors through a critical lens. However, in the eyes of the Appellate Term, the practice is not inherently objectionable. If an insurer can make out a prima facie case for summary judgment by merely submitting a “naked” peer review report, see East 75th St. Diagnostic Imaging v. Clarandon Natl. Ins. Co., 33 Misc.3d 573, 2011 N.Y. Slip Op 21315 (Dist Ct Nassau Co.), unaccompanied by medical records or other substantiating documentation, see Active Imaging, P.C. v. Progressive Northeastern Ins. Co., 2010 N.Y. Slip Op 51842(U) (App Term 2d Dept), it seems clear to this Court that the only required proof is sworn testimony from an expert setting forth a non-conclusory facially valid factual basis and medical rationale for the defense. Cf. Novacare Med. P.C. v. Travelers Prop. Cas. Ins. Co., 2011 N.Y. Slip Op 50500(U) (Dist Ct Nassau Co.). Once the defendant adduces such testimony, it is up to the plaintiff to utilize the peer review report and the medical records to undermine the defendant's case. See Novacare, supra. However, neither the report nor the records are a necessary part of the defendant's prima facie burden. See Psychology YM, supra; Active Imaging, supra.
In reaching this conclusion, the Court has carefully reviewed the Civil Court's recent decision in Park Slope Med & Surgical Supply, Inc. v. MetLife Auto & Home, supra. The Court in that case concluded that a substitute peer doctor should not be allowed to testify at trial unless a proper foundation is laid for the admission of the original peer review report. 35 Misc.3d at 687.
Were this Court writing on a clean slate, the Civil Court's analysis may have been persuasive. But close examination of the Appellate Term's recent decisions has convinced me otherwise. With all due respect for the otherwise well-reasoned decision of the Civil Court, the Appellate Term Second Department's decisions are binding upon this Court, and control the Court's resolution of the issue. Consequently, it follows that plaintiff's motion for a directed verdict must be denied.
However, this conclusion does not end the Court's analysis. Although Dr. Brown's testimony on direct examination set forth a facially sufficient factual basis and medical rationale for the lack of medical necessity defense, his opinion was significantly undermined on cross examination. He acknowledged, in response to counsel's questioning, that Dr. Bajaj's patient had undergone a lumbar spine MRI which revealed a disc bulge and a disc herniation. But he also admitted that such MRI test results could not show whether the patient had nerve damage or denervation.
As part of plaintiff's rebuttal case, Dr. Bajaj was called as a witness. She explained in clear and concise terms why she had ordered the EMG/NCV tests. Although other test results and examinations were sufficient to diagnose the patient's disc herniation, radiating pains, and symptoms of radiculopathy, Dr. Bajaj testified that the EMG/NCV was prescribed to determine the existence and location of nerve damage in the patient's lower extremities. The tests disclosed delayed nerve conduction velocity and denervation. It thus helped in the evaluation and treatment of the patient's condition, and it was particularly useful in determining whether the patient might need surgery or could be expected to get better over time. She also persuasively rebutted Dr. Brown's contention that such test results would not be useful in the treatment of a patient who was already receiving a course of conservative care. As she further explained, EMG/NCV test results often affect a doctor's recommendations for conservative care. She therefore insisted that the tests were, indeed, medically necessary and appropriate.
On balance, the Court, as finder of fact, concludes that defendant's proof, in the end, failed to meet its burden. While Dr. Brown was able to articulate a factual basis and medical rationale for the denial of plaintiff's claim, the rationale was proven to be suspect, and was rebutted in any event by Dr. Bajaj's credible testimony.
For these reasons, judgement is rendered for the plaintiff, for the principal amount in dispute ($1,509.24), with interest, costs and disbursements. Submit judgment on notice.
SO ORDERED: