All Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 50137(U))

Civil Court of the City of New York, Kings County

CV 061389/09

Sara Pankowski, Esq.

Attorney for Plaintiff

Gary Tsirelman, PC

65 Jay Street

3rd Floor

Brooklyn NY 11201

718-438-1200

Morgan MacKay, Esq.

Attorney for Defendant

Law Offices of Teresa M. Spina

170 Froehlich Farm Blvd.

Woodbury NY 11797

516-496-5822

Reginald A. Boddie, J.

In this action, plaintiff seeks to recover assigned first-party no-fault benefits for psychological services alleged to have been provided to the subject assignor. Plaintiff seeks reimbursement for an initial interview in the amount of $194.58, evaluation of records in the amount of $67.24, five hours of psychological testing in the amount of $696.50, and explanation and interpretation of results in the amount of $103.31 (plaintiff’s bill). Plaintiff was paid for the initial interview. The remainder of the services were denied as medically unnecessary and for fees not in accordance with the fee schedules (defendant’s NF-10). [*2]

The case was tried on December 8, 2010. At trial, plaintiff and defendant stipulated in writing to plaintiff’s prima facie case, defendant’s timely denials, admission of the expert witness disclosure package, which included the peer review report and medical records reviewed, and that the only issues for trial were lack of medical necessity and fees not in accordance with fee schedules.

Plaintiff rested, relying on the stipulation that it had established its prima facie case. Defendant’s witness was unavailable, and defendant moved to adjourn the trial to a later date to call a witness. Since defendant failed to show good cause, the application to adjourn was denied (NY City Civ Ct Act § 1302 [a]). Plaintiff then moved for a directed verdict on the ground that defendant was not ready to proceed and could not establish its defenses (CPLR 4401). Relying on the stipulation, defendant opposed plaintiff’s motion and cross-moved for a judgment in its favor on the ground that it established timely and proper denials, and that the peer review report and medical records were in evidence. The court reserved decision and the parties submitted post-trial briefs on January 2, 2012 and January 12, 2012. After consideration of the evidence and the parties’ arguments, plaintiff’s motion for a directed verdict is denied. Defendant’s motion for judgment is granted in part and denied in part for the reasons stated herein.

Under New York no-fault law, plaintiff must establish its prima facie case by demonstrating submission to the defendant of a claim form, proof of the fact and amount of the loss sustained, and proof either that the defendant failed to pay or deny the claim within the requisite 30-day period, or that the defendant issued a timely denial that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Here, plaintiff did not demonstrate the denial was untimely, conclusory, vague or without merit as a matter of law. Nevertheless, as a consequence of the parties’ prima facie stipulation, the burden shifted to defendant to prove the timeliness of its denials and the defenses stated therein (Amaze Med. Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists 2004]). Because the parties also stipulated that defendant timely denied the bills, the only issues for trial were lack of medical necessity and fees not in accordance with fee schedules.

Defendant “bears both the burden of production and persuasion” as to its defenses (Nir v Allstate Ins. Co., 7 Misc 3d 544 [Civ Ct, Kings County 2005],citing King’s Med. Supply Inc. v Country-Wide Ins. Co., 5 Misc 3d 767, 771 [Civ Ct, Kings County 2004]). To meet its burden of proof at trial on the defense of lack of medical necessity, at a minimum, defendant must establish a factual basis and medical rationale for the lack of medical necessity for the services for which reimbursement is sought (Nir, 7 Misc 3d at 546-547, [citations omitted]).

To establish the factual basis, the defense must be supported by sufficient factual evidence or proof and cannot be conclusory (Nir at 547, citing Inwood Hill Med. v Allstate Ins. Co., 3 Misc 3d 1110[A], 2004 Slip Op 50565[U] [Civ Ct, New York County 2004]). A peer [*3]review report may be found to have insufficient factual basis “…if it fails to provide specifics of the claim, is conclusory, or otherwise lacks a basis in the facts of the claim” (Nir at 547, citing Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 2004 NY Slip Op 24119 [App Term, 2d Dept 2004]).

Further, the medical rationale referenced in a peer review report must be within the generally accepted medical or professional practice. “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 values that define its calling” (Nir at 547, citing Citywide Social Work & Psychological Serv. PLLC v Travelers Indem. Co., 3 Misc 3d 608, 616 [Civ Ct, Kings County 2004]). A peer review report may be found insufficient when unsupported or controverted by evidence of “generally accepted medical/professional practice” (id.). However, where plaintiff rebuts the defendant’s evidence with its own demonstrating that the medical services were consistent with generally accepted medical practice, the defendant’s peer report may be accorded less weight, and the court may find that defendant failed to meet its burden (Nir at 547, citing see Elm Med. P.C. v Am. Home Assur. Co., 2003 NY Slip Op 51357[U] [Civ Ct, Kings County 2003]).

In support of its defense of lack of medical necessity, defendant proffered the peer review report of Michael H. Rosenfeld, Psy.D., a New York State Licensed Psychologist, whose report and resume were stipulated into evidence. As a preliminary matter, the court notes that the peer review report of Dr. Rosenfeld was signed and notarized on November 14, 2007, one day after the date stamped on the denial. Despite this fact, the court is compelled to consider the report as direct evidence of defendant’s defense since a court may not cast aside an open-court stipulation, as here, absent proof it was entered into by “fraud, collusion, mistake, accident or other such ground” (Matinzi v Joy, 60 NY2d 835, 836 [1983]; In re Frutiger’s Estate, 29 NY2d 143 [1971]; Gage v Jay Bee Photographer, Inc.,222 AD2d 648, 649 [2d Dept 1995]). Here, no such proof was alleged or demonstrated.

Dr. Rosenfeld stated that he reviewed the patient’s records concerning the services provided by John R. Braun, Ph.D., the treating psychologist, as well as the reports and recommendations related thereto, and found the services allegedly provided not medically necessary. The assignor was a fifty-seven year old female, involved in a motor vehicle accident on May 18, 2007, and allegedly suffered head, neck, lower back, and bilateral knee pain (Narrative Report at 2). The court notes, Dr. Rosenfeld’s peer report incorrectly lists bilateral shoulder pain among the alleged injuries and omits the head and bilateral knee pain (Peer Review Report at 2).

Dr. Rosenfeld further stated, “[t]he claimant received a diagnostic interview, a review of medical records, five hours of psychological testing and an explanation of results” (id. at 1). Claimant went to Long Island College Hospital after the accident (id. at 2). ” There was no loss of consciousness, head trauma, fractures, or lacerations” (id.). “The initial subjective complaints included: increased general nervousness, fear of driving or riding in cars, nightmares, headaches, dizziness, sleep disturbance, feeling weak and fatigued, etc.” (id.). [*4]

Dr. Braun treated claimant from August 3, 2007 to August 10, 2007 (id. at 1). He performed a mental status examination and gave claimant a series of self-administered checklist tests, including the Beck Depression Inventory (BDI), Beck Hopelessness Scale (BHS), Beck Anxiety Inventory (BAI), Neuro-Psychological Symptom Checklist (NSC), Patient Pain Profile (P-3), and Posttraumatic Stress Diagnostic Scale (PDS) (Narrative Report at 4). The doctor billed for a diagnostic interview, a review of medical records, five hours of psychological testing and an explanation of results (plaintiff’s bill).

Dr. Rosenfeld stated, “Given the complaints, the initial intake was appropriate, however, the psychological testing was excessive, unnecessary, and deviates from accepted standard practice in psychology” (Peer Review Report at 2). He reasoned that the standard practice in psychology for establishing a diagnosis and developing a treatment plan is to conduct a thorough diagnostic interview and mental status examination of the patient. He stated, “Psychological testing is never considered necessary unless there are subtle or complex issues to investigate and the diagnosis cannot be determined based upon the clinical interview/mental status examination alone (i.e., testing could be necessary to rule out mental retardation, to rule out psychosis, to rule out a mild head injury, etc.).” (Id.)

Dr. Rosenfeld further stated this case was straightforward and without subtle or complex issues to investigate; the diagnosis and treatment plan should have been based on the interview and mental status examination alone; and the psychological testing was unnecessary and inconsistent with acceptable standards of psychological practice (id.). He indicated that the review of the records was medically unnecessary because it is normally part of the initial interview, and the explanation and interpretation of results was medically unnecessary since the tests were not warranted (id. at 3).

Plaintiff failed to rebut defendant’s evidence with testimonial or other documentary evidence (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 5232[U][App Term, 2d, 11th & 13th Jud Dists 2009], citing see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495 [App Term, 2d, 11th & 13th Jud Dists 2009]). The court acknowledges there are circumstances where a live witness would be required to embellish defendant’s position. Here, the court finds defendant was not required to present an expert witness to testify at trial, particularly since plaintiff did not offer a witness or any evidence whatsoever on rebuttal. Accordingly, the court finds defendant successfully proved lack of medical necessity for four of the tests administered and the related explanation and interpretation of results.

The court limits the relief awarded because Dr. Rosenfeld’s report only meaningfully referred to and discussed four tests allegedly administered to the assignor, the BAI, BHS, BDI and PDS (see Nir, 7 Misc 3d at 548, citing Amaze, 3 Misc 3d 43). The peer review report did not discuss the NSC or P-3. Accordingly, the court finds Dr. Rosenfeld’s peer review report sets forth a sufficient factual basis and medical rationale for the lack of medical necessity of four of the six psychological services allegedly provided, the review of records, and the explanation and interpretation of results. The court finds defendant failed to meet its burden of establishing its defense of lack of medical necessity for the NSC and P-3 tests, and the relevant explanation and [*5]interpretation of results.

Finally, as to defendant’s defense of fees not in accordance with fee schedules, it was the “defendant’s burden to come forward with competent evidentiary proof’ supporting its fee schedule defenses” (Robert Physical Therapy v State Farm Mut. Auto. Ins. Co., 13 Misc 3d 172, 175 [Civ Ct, Kings County 2006] [citations omitted]). Defendant had the burden to “…proffer sufficient evidence to establish as a matter of law that the amounts charged in said claims were in excess of the amounts permitted by the fee schedule” (Rogy Med. P.C. v Mercury Cas. Co., 23 Misc 3d 132[A]; 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009], [citations omitted]).

Here, defendant proffered no testimonial or documentary evidence to prove its fee schedule defense. Therefore, defendant’s fee schedule defense fails. Nevertheless, defendant proved lack of medical necessity for all but two of the services billed. Accordingly, a partial judgment is granted to plaintiff in the amount of $266.61, plus statutory interest from the date of filing, costs, and attorney’s fees. The balance of the claim is dismissed with prejudice.

This constitutes the Decision and Order of the court.

Dated:January 31, 2012 ______________________Hon. Reginald A. Boddie

Judge, Civil Court