Opinion
24079/08.
Decided January 27, 2011.
Plaintiff, Consolidated Imaging, P.C., a/a/o Mariya A. Rafailova, commenced this action against defendant, Travelers Indemnity Company, alleging that the defendant failed to pay for first-party no-fault benefit related services plaintiff rendered to the assignor pursuant to a valid no-fault insurance contract. A trial was held on January 11, 2011. Both sides were represented by counsel.
Prior to taking testimony the parties entered into a stipulation as to the plaintiff having timely and properly submitted its bill for a cervical MRI on August 12, 2005 in the amount of $879.73 and that the defendant timely denied payment. The parties also stipulated to the admission of the peer review report prepared by Susan Corcoran, MD for defendant on October 6, 2005. The plaintiff stipulated as to the expertise of Dr. Corcoran who was called as defendant's witness. The plaintiff did not stipulate to the admission of any of the medical reports reviewed by Dr. Corcoran in rendering the opinion in her peer review report. Defendant did not seek to place these reports into evidence. It is stipulated that the medical services were rendered to the assignor subsequent to a motor vehicle accident on July 23, 2005.
Counsel for plaintiff objected to having Dr. Corcoran testify asserting that because he did not stipulate to admit into evidence as part of the parties joint trial packet the medical reports reviewed by Dr. Corcoran, she should be precluded from testifying, not on the ground that the reports are not admissible, but on the basis that those reports were not properly authenticated and the defendant presented no chain of custody to insure their reliability and completeness.
The events in this case leading up to the preparation of a peer review report are typical of almost all first-party no-fault benefit claims facing the courts. An insured party is injured in a motor vehicle accident, medical providers perform services to treat the injuries received, the provider of those services submits the bills and the required forms to the insured's insurance carrier, the carrier reviews the billing and forms and either pays or denies coverage. In cases where the carrier is questioning the medical necessity of the treatment, a peer review of the matter is sought. Medical and other records of the injured party are generally sent to a third-party vendor who submits the package to an expert, in this case a physician, to review and render an opinion as to the medical necessity of the treatment.
Plaintiff's counsel is challenging the validity of this procedure because there is no way to determine whether the records sent to the peer reviewer are complete. The records do not go directly from the defendant carrier to the peer reviewer but are marshaled by the third-party vendor and forwarded by the vendor to the peer reviewer.
It has been held that: the plaintiff cannot challenge the reliability of its own medical records and reports submitted to the defendant's expert which the plaintiff prepared in regard to its treatment of the assignor [ Cross Continental Medical, P.C. v. Allstate Insurance Co., 13 Misc 3d 10 (2006)]; with respect to medical records of other providers who rendered treatment to the assignor, the plaintiff stands in the shoes of its assignor and acquires no greater rights than its assignor in challenging their accuracy [ Urban Radiology, P.C. v. Tri-State Consumer Insurance Company, 27 Misc 3d 140(A), 2010 NY Slip Op. 50987 (U)]; because the peer review doctor is to accept the information in the records as true for the purpose of determining the medical necessity of the procedure in question, the issue of the reliability of the records and hearsay as raised in Wagman v Bradshaw, 292 AD2d 84 (2002) does not apply because the records are not being relied upon to establish the truth of the facts set forth therein [ Elmont Open MRI Diagnostic Radiology, P.C. v. New York Central Mutual Fire Insurance Co., 30 Misc 3d 126(A), 2010 NY Slip Opinion 52222(U)]. All of these cases assume that the records being used by defendant's expert as the basis for his or her opinion have been made available or otherwise disclosed to the plaintiff.
For a discussion as to why such medical testimony is reliable see Bako v DeCaro, NYLJ, 6/24/2002, p 24, col 6.
Plaintiff asserts that there is an issue as to authentication of the records presented to the peer review doctor. Authentication only becomes an issue if there is an intent to admit the records into evidence. A procedure for authentication of records is set forth at CPLR § 4518(c). The issue in this situation is not really one of authentication of the documents. It is how does the court know exactly what information the peer review doctor was given to review because the records come from a third-party vendor and not the treating physician. There is a presumption that a doctor's records are accurate because they are prepared for the treatment of the patient and may be relied upon by other health care professionals for treatment of the patient. The records are not being forwarded to the peer reviewer from another doctor with its attendant professional reliability; they are not being provided directly by the insurance carrier which has both a statutory and contractual obligation to provide accurate information; the records are being forwarded from a third-party vendor who contracts with the carrier apparently to gather the medical records, locate an "expert" to prepare a peer review and forward the records to the expert for the preparation of a report.
The court is totally unaware of the dynamics of the contractual relationship between the carrier and the third-party vendor, as well as the third-party vendor and the peer reviewer. Who determines what records are forwarded to the peer reviewer, the carrier or the third-party vendor? Is there a correlation between the volume of referrals the third-party vendor receives from a carrier and the opinion rendered by the peer reviewer? Depending on what records are sent for review, may in fact predetermine the result. Should not the peer reviewer base his or her decision only on the same records the referring physician used to make the referral? If the peer reviewer has either more or less reports, the results are potentially being skewered. If the goal is to determine if the health related services in question are "medically necessary" as having been determined by the referring health professional, the peer reviewer should only be in possession of the information relied upon by the referring health professional. The case law has determined that whether or not the diagnostic test or medical service in question revealed an injury is irrelevant to the issue of "medical necessity" at the time of the referral-the issue being was the referring health professional acting in accordance with generally accepted medical practice when the referral was made.
It has been established that in these first-party benefit claims the plaintiff proves a prima facie case of medical necessity by submitting proof in evidentiary form that the statutory prescribed forms were timely mailed and received, and the no-fault benefits were not timely paid [ Globe Surgical Supply v GEICO Ins Co. , 59 AD3d 129 (2008)]. Once the plaintiff has met this burden, the burden of proof shifts to the defendants to establish the test or treatment was not medically necessary [ A Plus Medical PC v GEICO, 21 Misc 3d 799 (2008)].
Defendant has sought to meet its burden to prove that the treatment was not medically necessary by having Dr. Corcoran conduct a peer review. There are several problems with Dr. Corcoran's peer review report. First, she lists her speciality as "internal medicine" and that her purpose is to "perform an Internal Medicine File Review" of the medical necessity of the cervical MRI performed. This presumes that Yvette Davidov, MD, the physician that ordered the MRI, also practices internal medicine. Although New York allows any physician to render a medical opinion, even out of that physician's area of specialization [ Fuller v Preis, 35 NY2d 425 (1974)] a difference in specializations between the referring physician and the peer reviewer would go to the weight of the opinion [ Moon Ok Kwon v Martin , 19 AD3d 664 (2005)]. It has also been held that a neurologists peer review report would be insufficient to challenge the medical necessity of an MRI ordered by a chiropractor as the neurologist could not testify as to the generally accepted chiropractic standard for such a referral [ Elmont Open MRI Diagnostic Radiology V. State Farm Insurance 26 Misc 3d 1211(A) 2010] For instance, a carrier might very well have a proctologist render a peer review opinion as to the medical necessity of an MRI of the brain ordered by a neurologist. New York would allow the rendering of such an opinion, but it is doubtful that it would have the same weight as one given by another neurologist. It is the understanding of the court that in the medical profession a proper peer review is to be conducted by a physician not only from the same area of specialization, but often from the same area of sub-specialization.
Neither the initial referral from Davidov for the MRI nor any of her records or reports has been placed in evidence, nor have their contents been stipulated to. Presumably then for the plaintiff to repudiate the testimony of the peer reviewer, plaintiff would have to hire its own expert or subpoena the referring physician because she is not under the control of the plaintiff choices which do not make any economic sense in view of the small amount in controversy in this litigation.
Second, in determining whether the tests or procedures in question were medically necessary the standard is were they performed in accordance with generally accepted medical practices and not whether the peer reviewer's personal opinion is that they were not medically necessary. To meet this standard, the peer reviewer must establish a familiarity with generally accepted practice, must establish what generally accepted practice is under the circumstances facing the referring health service provider and must state that the treatment in question was not in accordance with that generally accepted medical practice [ Elmont Open MRI Diagnostic Radiology PC v Progressive Casualty Insurance Co., 23 Misc 3d 1110(A), 2009 NY Slip Op 50693 (U); Williamsbridge Radiology Open Imaging v Travelers Indemnity Co., 14 Misc 3d 1231(A)]. Dr. Corcoran's peer review report is completely devoid of any of this required language. She merely renders an opinion that there was "no medical necessity" for the cervical MRI. She cites no authority to support her conclusion and does not even address the issue of what is the generally accepted medical practice which the referring physician breached in ordering the MRI. Her report contains bold, unsubstantiated conclusions and is not in compliance with the requirements established by the case law. The issue has to of course be what is the generally accepted practice for the referring physician to follow and not that for the plaintiff, unless defendant is asserting that the generally accepted medical practice is for diagnostic providers, such as the plaintiff, to refuse to perform a test ordered by a licensed physician; a position completely contrary to the recognized practice of medicine.
Third, the peer review report contains a typographical error. It says that the MRI revealed a "bulge of the C5-C5 disc." Dr. Corcoran did not correct this error until questioned by the court at trial as to whether she meant C4-C5 or C5-C6. She testified after reviewing the MRI report, which was not in evidence, that it should be C5-C6. Dr. Corcoran in the "discussion" section of her report states that the "claimant (the assignor) went to S R Medical, PC on July 27, 2005." However, she does not indicate in her report who S R Medical is and what connection, if any, that entity has with Dr. Davidov.
Conclusion:
The court must reject the peer review report and testimony of defendant's expert as not being reliable for the reasons set forth above. In addition, there are serious due process issues arising from the practice of carriers such as defendants operating through third party vendors who select the peer reviewers and "cherry-pick" what information is presented to the peer reviewer. In situations such as this, where the parties do not stipulate as to the admissibility of the documents to be placed in evidence, the defendant has the burden of placing those items in evidence in a properly authenticated form. Without such a process the plaintiff is at a disadvantage in cross-examining a peer review doctor as to the basis of his or her opinion and likewise the court cannot adequately determine whether the peer reviewer's opinion is based on a complete and reliable record.
Judgment for plaintiff in the amount of $879.23 with interest, costs, disbursements and attorneys' fees as permitted by statute. Plaintiff has proven its prima facie case. Defendant has failed to establish a lack of medical necessity.
The foregoing constitutes the Decision and Order of the Court.
COMMENT:
First-party benefit no-fault litigation in New York has developed into institutionalized "second-guessing," "Monday-morning quarter-backing," and "20-20 hindsight" where health service providers following instructions from physicians and other licensed health service providers are denied recovery from an insurance carrier after the fact for services previously rendered. The health service provider receiving the referral would seem to have a legal, medical and ethical obligation to perform the service requested by the licensed health care provider and does not have the authority to question the request. The court recognizes that there is a substantial need to prevent fraud in insurance claims with carriers being able to have the ability to weed out staged accidents and "no-fault mills." Presumably, the current system is designed to prevent that from occurring. The court questions why the same result could not be achieved by requiring "pre-approval" for all non-emergency testing, treatments and supplies as is common with numerous other medical insurance programs. The answer given by counsel for plaintiffs and defendants when questioned is that the insurance law and the regulations do not permit pre-approval. Apparently the insurance law and regulations also do not prohibit such a process. Because this is a "contractual" relationship-according to the case law which concluded a six-year and not a three-year statute of limitations is applicable to this litigation- and not a right created by statute, there should be nothing preventing the insurance industry from adopting such as simple procedure. Pre-approval would eliminate almost all of the litigation generated by the carrier's failure to pay for previously rendered services and would be better a check on fraudulent claims because the carrier could track the applications for benefits before the expense could be incurred. [ See Long Island Radiology v. Allstate, NYJL, 7/11/06, P. 26 Col. 1]