A.R. Med. Art, P.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 50260(U))

Civil Court, Kings County

98035/04

Delores J. Thomas, J.

Plaintiff, a medical services provider, seeks to recover $2,143.90 in fees for services it provided to assignor Nato Seselia for EMG/NCV test.

Defendant denied payment on the basis that the tests were medically unnecessary.

The only issue at trial as the parties had stipulated to all other pertinent issues, was whether the EMG/NCV test were necessary. Therefore, defendant bore the burden of proof on this issue (see, Citywide Social Work & Psy. Serv. v. Travelers, Indem. Co., 3 Misc 3d 608 [Civ. Ct., Kings Co., 2004]; Elm Medical P. C. v. American Home Assurance Co., 2003 NY Slip Op. 51357 [U], 2003 WL 22471156 [Civ. Ct., Kings Co., 2003]; Fifth Ave. Pain Control Center v. Allstate Ins. Co., 196 Misc 2d 801 [Civ. Ct., Queens Co., 2003]).

Testifying on behalf of defendant was Joseph Cole, board certified in physical and rehabilitation medicine. Dr. Cole testified that he reviewed plaintiff medical reports dated April 30, 2003 and May 20, 2003, police accident report and a report dated May 6, 2003 for range of motion testing. Dr. Cole testified that the EMG/NCV test performed by plaintiff were unnecessary because there was already a diagnosis. Dr. Cole testified that the test are only ordered if it would alter the diagnosis or if it was needed to determine location of nerve injury (i.e. neck or wrist). He further testified that the medical documentation reflected that the assignor was improving and there was no indication of a “diagnostic dilemma” necessitating the test.

No one testified on behalf of plaintiff in response to Dr. Cole’s testimony; instead the parties stipulated into evidence as Plaintiff’s Exhibit No.3 a Letter of Medical Necessity for NCV/EMG Test from Alexander Rozenberg, MD, FAAPMR, board certified in physical medicine and rehabilitation.

The letter indicates that the assignor presented to plaintiff’s office with complaints of neck pain with radiation from the neck to the right shoulder and arm with numbness, weakness and tingling sensation in the right shoulder and with restriction of neck movement. The assignor had been diagnosed with cervical paraspinal muscle and ligaments strain/sprain secondary to acceleration/deceleration injury.

The letter further indicates that Dr. Rozenberg ordered electromyography studies in order to determine the exact diagnosis, possible localization and extent of injury; better predict prognosis for recovery and possible residual neurologic deficits, plan possible deep electrical [*2]stimulation nerve block or medicamentous nerve block or neurosurgical evaluation if all other treatment modalities failed.

The Letter of Medical Necessity goes on to indicate that the test were done to rule out cervical radiculopathy and evaluate the extent of nerve damage. Dr. Rozenberg states in the letter that sensory nerve conduction studies are important to exclude plexopathy and mononeuropathy. He further states that the Needle EMG is an essential component of the evaluation to specifically define involved myotomes.

Plaintiff’s exhibit indicates that the Nerve Conduction studies were reported as normal. The document further indicates that the Needle EMG studies of both upper extremities and muscles showed evidence of denervation in the distribution of the right C5-6 paraspinal nerve roots. Dr. Rozenberg concluded that the findings were consistent with right cervical radiculopathy. Based upon his findings he advised the assignor to continue physical therapy and added cervical traction.

A no-fault insurer defending a denial of first-party benefits on the ground that the billed for services were not “medically necessary” must at least show that the services were inconsistent with generally accepted medical/professional practices. The opinion of the insurer’s expert, standing, alone is insufficient to carry the insurer’s burden of proving that the services were not “medically necessary” (Citywide Social Work & Psy, Serv. v. Travelers Indem. Co., 3 Misc 3d 608, 609 supra.). “Generally accepted practice” is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and value that define its calling” (A.B. Med. Ser. v. New York Central Mut. Fire Ins. Co., 7 Misc 3d 1018 [A][Civ. Ct. Kings Co. 2005]; Citywide Social Work & Psy Serv. v. Travelers Indemnity Co., supra).

In A.B. Med. Serv. v. New York Central Mut. Fire Ins. Co. a similar issue regarding neurological testing was involved. Therein the plaintiff had conducted EMG/NCV tests and Somatosensory Evoked Potential (SSEP) tests to determine whether the patient suffered nerve injury from the accident. At trial, defendant’s witness testified that the test were not medically necessary because they did not serve to substantiate the doctor’s findings from the initial physical examination of the patient. The witness testified that it was generally accepted medical practice to utilize electrodiagnostic testing only to determine whether an injury to a nerve exists and nerve damage had already been diagnosed for this patient.

Thereafter the plaintiff’s medical witness, the treating doctor, testified that EMG/NCV and SEEP testing could be utilized even if there was no “diagnostic dilemma”. The doctor further testified that according to generally accepted medical practice, this testing not only confirms a doctor’s suspicions of possible nerve damage, but may also assist in localizing the nerve injury.

In the instant case, neither defendant doctor or the letter of medical necessity uses the language “generally accepted medical practice” prefacing their statements. Dr. Cole deemed the test to be unnecessary because there was no “diagnostic dilemma”, the patient was improving and from the physical examination and history it could be determined that the assignor/patient had a right-sided cervical radiculopathy and a right sided lumbar radiculopathy. He opined that if the test does not effect the treatment, there is no reason to do the test. Therefore, since the test results were normal, and did not effect the course of treatment, they were unnecessary.

The Letter of Medical Necessity from Dr. Rozenberg clearly set forth the reason he had [*3]requested the test be performed. On cross-examination after having been shown the letter (done after Dr. Cole’s peer review), Dr. Cole agreed that the test could be used to determine the conditions set forth in the letter such as plexopathy and mononeuropathy, and the localization of any nerve injury; nonetheless the maintained that the tests were unnecessary for the reasons he previously stated.

The evidence shows contradictory positions between Dr. Cole and Dr. Rozenberg. The evidence shows that Dr. Rozenberg used the electrodiagnostic testing in light of the patient’s complaints to make an exact diagnosis, to locate a possible lesion and to determine the extent of the injury and to exclude possible conditions. The fact that the results were normal to this Court’s mind is not determinative of the usefulness of the studies. In the face of a course of treatment that has not been shown to have no medical purpose or performed towards no medical objective, this Court is not prepared to second guess a treating doctor who decides that a medical test is necessary for his/her diagnosis and treatment (see also A.B. Med. Serv. v. New York Central Mut. Fire Ins. Co., supra; Alliance Med. Office, P.C. v. Allstate Ins. Co., 196 Misc 2d 268 [Civ Ct. Kings Co. 2003]; see also Citywide Social Work & Psy. Serv. P.L.L.C v. Travelers Indemnity Co., supra]). Defendant has failed to show that the test herein were inconsistent with generally accepted/professional practices and therefore medically unnecessary.

Accordingly, judgment is rendered in favor of plaintiff and against defendant in the sum of $2,143.90. This constitutes the decision and judgment of the Court.

DATED: February 27, 2006

Brooklyn, New York

DELORES J. THOMAS

Judge Civil Court