Opinion
CV-050267/15
08-01-2018
S & R MEDICAL, P.C., a/a/o Malka Becker, Plaintiff, v. HEREFORD INSURANCE COMPANY, Defendant.
Appearance for plaintiff: David Karp Esq., Fuld & Karp PC, 1963 Coney Island Ave, Brooklyn, NY 11223 Appearance for defendant, Andrew Schiavone Esq., Lawrence Robert Miles, 36-01 43rd Avenue, Long Island City, NY 11101
Appearance for plaintiff: David Karp Esq., Fuld & Karp PC, 1963 Coney Island Ave, Brooklyn, NY 11223
Appearance for defendant, Andrew Schiavone Esq., Lawrence Robert Miles, 36-01 43rd Avenue, Long Island City, NY 11101
Odessa Kennedy, J.
A trial was held before the Court on June 19, 2018. After evaluating the evidence, the Court finds as follows.
The parties stipulated that each established its prima facie burden, and that medical necessity was the sole issue for trial. They further stipulated to the admission of bills into evidence for services rendered on March 19, 2013 in the sum of $4,587.94, of which, defendant conceded the sum of $1,440.50, and denied as medically unnecessary, the remaining $3,143.44, which consisted of $236.94 for an office visit, and $1,333.26 and $1,573.24 for EMGs performed of the upper and lower extremities respectively.
To demonstrate proper denial, defendant has the burden to show that the services provided to plaintiff's assignors were medically unnecessary. To meet this burden, defendant must establish a factual basis and medical rationale for its asserted lack of medical necessity, which is supported by evidence of the generally accepted medical professional . See Nir v. Allstate Ins. Co. , 7 Misc 3d 544, 796 N.Y.S.2d 857 [Civ. Ct., Kings County, 2005] ; Healing Hands Chiropractic, P.C. v. Nationwide Assur. Co. , 5 Misc 3d 975, 787 N.Y.S.2d 645 [Civ. Ct., New York County, 2004].
Defendant's peer review expert, a board-certified physiatrist, was the only witness produced at trial. He testified that the assignor complained of pain to the head, shoulders and lower back resulting from a motor vehicle incident on December 12, 2012. The expert opined that the EMG tests performed by plaintiff on March 19, 2013 to diagnose the assignor were medically unnecessary.
To demonstrate lack of medical necessity, the expert exclusively relied on two reports from the assignor's treating physician, Dr. Zarhin. The reports detailed assignor's physical examinations performed on January 17, 2013, and on March 19, 2013 (prior to but on the same date as the EMGs).
Despite the expert's complete reliance on Dr. Zarhin's reports, defendant did not seek to enter the reports into evidence to demonstrate the factual basis of defendant's denials of the bill (See Park Slope Med. & Surgical Supply, Inc. v. Travelers Ins. Co. , 37 Misc 3d 19, 952 N.Y.S.2d 372 [App Term, 2d Dept. 2d, 11th & 13th Jud Dists. 2012]; or to facilitate the Court's assessment of the validity of the witness' testimony regarding their contents. Instead, defendant sought to establish the contents of the reports exclusively through the testimony of its expert.
According to the expert, the reports demonstrated that prior to performing the EMGs, Dr. Zarhin had already "diagnosed" the assignor with cervical and lumbar radiculopathy, which obviated the need for an additional diagnosis by means of an EMG. To demonstrate Dr. Zarhin's pre-EMG diagnosis of radiculopathy, the expert stated in ambiguous terms that "radiculopathy," "among couple of other things {are} circled here {pointing to document not in evidence}."
In response to the Court's inquiries seeking clarification, the witness, however, altered his testimony, stating that prior to conducting the EMGs, Dr. Zarhin had not formed a diagnosis, but was trying to formulate a diagnosis by ruling out "radiculopathy," "carpal tunnel syndrome" and "peripheral neuropathy" with EMGs.
To further demonstrate lack of medical necessity of the EMGs, the witness then testified that the assignor's physical examination performed by Dr. Zarhin on January 17, 2013, revealed a negative Romber test, and an "almost normal " "4 out of 5" muscle strength of the upper and lower extremities. He contended that the assignor's subsequent March 19, 2013 physical examination revealed an improvement of the muscle strength to "normal" at "5 out of 5" "everywhere" other than the shoulder. Based on the foregoing, the expert concluded that "the mechanics of the injury" in the subject incident "would not be consistent" with causing radiculopathy. Radiculopathy is impingement of nerves that split from the spine, which the expert contended would cause "wider spread damage and weakness [than those reflected in Dr. Zarhin's reports]."
On cross examination, however, the witness changed his testimony, and admitted that the March 19, 2013 physical examination revealed that the assignor's muscle strength did not improve but remained at "4 out of 5."
The witness further admitted that there were numerous positive neurological findings in the March 19, 2013 report, which the witness omitted from his direct testimony, even though each finding could be indicative of radiculopathy.
More notably, on cross, the witness changed his prior finding that radiculopathy was "inconsistent" with the mechanics of the subject incident and the assignor's symptoms. On cross examination, the witness agreed that Dr. Zarhin's diagnosis of radiculopathy was accurate. Yet, the witness still argued that EMGs were medically unnecessary, as Dr. Zarhin should have clinically formed the diagnosis of radiculopathy.
Finally, the EMGs were medically unnecessary, according to the witness, as the results of the EMGs did not enhance the assignor's treatment. The witness contended that after the EMGs were performed, there was no change in the assignor's treatment, thereby rendering the EMGs unnecessary.
However, the witness admitted that he never reviewed any medical records regarding the assignor's treatment after the EMGs, which rendered his testimony speculative.
Defendant had the simple burden to establish the contents of Dr. Zarhin's reports as the factual basis for its asserted lack of medical necessity. Despite its total reliance on said reports in denying the bills, defendant inexplicably did not offer the reports into evidence which it could have as non-hearsay records forming the basis of the denials. Instead, defendant sought to establish the contents of the reports through its expert's testimony, which the Court finds ambiguous, inconsonant, and unreliable.
Based on the foregoing, defendant failed to meet its burden of establishing a factual basis and medical rationale for its asserted lack of medical necessity. It is hereby ordered that judgment be entered in favor of plaintiff in the amount of $4,587.94 plus statutory costs, interest and fees.