Cambridge Med., P.C. v Government Empls. Ins. Co. (2008 NY Slip Op 50435(U))

Civil Court of the City of New York, Richmond County

25573/06

Counsel for Plaintiff:

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock

& Neuwirth

150 Herricks Road

Mineola, NY 11501

516-741-2320

Counsel for Defendant:

Teresa M. Spina, Esq.

88 Froelich Farm Blvd.

Suite 202

Woodbury, NY 11797

516-682-7274

Katherine A. Levine, J.

Plaintiff Cambridge Medical P.C. (“plaintiff”), a medical services provider, seeks to recover $1,617.69 for the EMG/NCV it conducted upon the assignor Webster Simmons (“Simmons” or “claimant”) following injuries that the claimant sustained in an automobile accident. Defendant Government Employees Insurance Company (“defendant” or “Geico”) claims that the tests were medically unnecessary. At the trial held on January 23, 2008, the parties stipulated to plaintiff’s prima facie case and defendant’s timely denial of the claim. [*2]Therefore, the only issue presented to the court was whether the EMG/NCV conducted on October 5, 2006 was medically necessary.

The medical records put into evidence by plaintiff reveal that claimant had appeared before Dr. Anand, a doctor of physical medicine and rehabilitation associated with plaintiff, on both September 19 and October 5, 2006 wherein he presented both times with complaints of neck pain which radiated to the left arm, and numbness and tingling to the left arm. On both occasions Dr. Anand conducted a physiatrics examination of the cervical spine which revealed muscle spasm and associated tenderness to palpation, and a Spurling’s test which was positive on the left. He found the following impressions: cervical sprain/strain; neck and back pain, spasm and r/o cervical radiculopathy – a nerve root problem at the neck with pain going down the arm (Plaintiff s 2). On September 19th Dr. Anand did not recommend that the patient undergo an electro diagnostic evaluation in order to rule out radiculopathy and/or other peripheral nerve damage. However, if the patient’s condition failed to improve with conservative management, reevaluation would be considered. Since September 5, 2006 the claimant had been undergoing physical therapy five times a week consisting of massage, joint mobilization, therapeutic exercise, ultrasound, hot packs and electrical stimulation.

On October 5, 2006, however, Anand recommended that the claimant undergo an electro diagnostic evaluation, including an electromyography (“EMG”) and nerve conduction velocity (“NCV”) of the region and bilateral upper extremities in order to rule out radiculopathy and/or other peripheral nerve damage. The impression of the electro diagnostic study, conducted on October 5, 2006, revealed evidence of C5-C6 radiculopathy on the left and active denervation in the left C5-C6 innervated musculature and moderate carpal tunnel syndrome affecting sensory and motor components. Dr. Anand recommended continued chiropractic care for the involved spinal areas.

A presumption of medical necessity attaches to a defendant’s admission of the plaintiff’s timely submission of proper claim forms, and the burden then switches to the defendant to demonstrate the lack of medical necessity. Acupuncture Prime Care, P.C. v. State Farm Mutual Auto Ins., 2007 NY Slip Op. 52273U; 2007 NY Misc. LEXIS 7860 (Dist. Ct., Nassau Co. 12/3/2007);A.B. Medical Services, PLLC v. NY Central Mutual Fire Ins. Co., 7 Misc 3d 1018(A), 801 N.Y.S., 2d 229 (Civil Ct. Kings. Co. 2005); Citywide Social Work & Psychological Services v. Travelers Indemnity, 3 Misc 3d 608, 609 (Civil Ct., Kings Co. 2004). Defendant thus bears “both the burden of production and the burden of persuasion with respect to the medical necessity of the treatment or testing for which payment is sought.” See, Bajaj v. Progressive Ins. Co., 14 Misc 3d 1202(A) (N.Y.C. Civ. Ct. 2006). The quantum of proof necessary to meet defendant’s burden, at the bare minimum, is to “establish a factual basis and medical rationale for the lack of medical necessity of plaintiff’s services.” Id. See also, A.B. Medical Services, supra .

Defendant presented the testimony of Dr. Joseph C. Cole who is board certified in physical medicine and rehabilitation. Dr. Cole conducted a peer review by reviewing a number [*3]of medical records or reports as listed in his peer review letter (defendant’s 2). Dr. Cole first described the EMG test which consists of putting a subcutaneous electrode or needle into the skin and recording abnormal electrical activity of the muscles and nerves. The NCV consists of stimulating a part of the body to measure the distance and velocity.

Dr. Cole stated in his peer review letter that it was the “standard of care” to order electro diagnostic testing only when the results of such test would benefit the patient more so than a detailed history and physical exam would. He also testified that the American Association of Electro Diagnostic Medicine (“AAEM”) guidelines reflect that EMG/NCV testing should only be used as an extension of a detailed history and physical examination, and only when the “results of the test would be expected to affect treatment” (Tr, 5).

Dr. Cole opined that the EMG/NCV test was not medically necessary because based on his review of the records he could not discern, “regardless of the results of the test”, how the test would have benefitted the patient any more so than a detailed patient history and physical examination would have (Tr. 4).He found that the history and physical examination findings did not substantiate the performance of such tests and would not be necessary prior to the continuation of conservative physical therapy or chiropractic care. He also opined that a physical exam of the muscles to see if there were spasms and a neurological exam would have benefitted the claimant as much as the EMG/NCV.

Dr. Cole also disagreed with the use of EMG/NCV testing to rule out radiculopathy since its limitations in evaluating this condition were “well outlined in the literature”. He stated that the AAEM minimonograph No.32 ( not submitted into evidence) reflects that EMG/NCV testing is not “the test of choice” as a screening tool for radiculopathy since it can’t be used to exclude radiculopathy even if there is a finding of normal. Furthermore, “cervical radiculopathy is diagnosed everyday in medicine with an EMG”. (Tr. 7)

Dr. Cole also acknowledged that Dr. Anand did not initially request an electro diagnostic test as he wanted to see if the patient would improve with conservative care, i.e. physical therapy and chiropractic care. He also acknowledged that on October 5, 2006 the claimant still was complaining of pain to the arm, weakness at the biceps and neck pain with radiation ideation and that the Spurling test was positive. (Tr.10). Additionally, there was a decreased range of motion of the cervical spine between the two reports so that the patient had not improved at all.

Dr. Cole admitted that the function of an electro diagnostic exam was to localize nerve tensions as accurately as possible and that the EMG/NCV was the “gold standard” in that (Tr. 11). He also agreed that establishing a specific diagnosis is important in the effective management of an individual who presents with a complaint of lower back pain and that an individualized electro diagnostic study was an extension of a detailed history and physical exam and could be useful and important in the proper evaluation of an individual with back pain. He stated that an EMG/NCV could help localize nerve root lesions as could a physical examination. [*4]Dr. Cole agreed with the statement in a 1999 AAEM article – chapter 9 “Practice Parameters for Needle Electromyographic Evaluation” (plaintiff’s 3) which noted that “a needle EMG is widely regarded as the technique of choice in the diagnostic evaluation of cervical radiculopathy.” This article also stated that “(b)ased on a critical review of the literature, electro diagnostic evaluation is found to be moderately sensitive and highly specific in establishing a diagnosis of cervical radiculopathy.”

The court then asked what it believed to be the crux of the issue – why would an expert conclude that the electro diagnostic study would be of no benefit to the plaintiff when there had been no subsiding of the pain over time and why would the test not assist the doctors in diagnosing why the pain still existed (Tr. 16). Dr. Cole responded that as of September 19th the patient had been diagnosed with radiculopathy and that “this diagnosis is made everyday without EMG” and that in this case the EMG would not add to or enhance the care.” (Tr. 16). The doctor then confirmed that regardless of the results of the test, there would be no change in treatment (Tr. 17).

This court finds that the defendant’s proof fails to prima facie demonstrate the lack of medical necessity for the treatment in question. Fatally missing from the doctor’s testimony is any mention of the applicable generally accepted medical/professional standard and the plaintiff’s departure therefrom. In the leading case of Services v. Travelers Indemnity, Citywide Social Work & Psychological, 3 Misc 3d 608, 609 (Civil Ct., Kings Co. 2004), Justice Battaglia succinctly stated:

“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 practice. The opinion of the insurers’s expert, standing alone, is insufficient to carry the burden of proving that the services were not medically necessary”.

See , Acupuncture Prime Care v. State Farm Mutual Auto, supra .A generally accepted medical/professional practice has been defined as “that range of practice that the professional will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling.” 3 Misc 3d at 616.; A.B. Medical Services , P.L.L.C., supra .

In order to find that a treatment or service is not medically necessary, the defendant must show by medical evidence “that the treatment or services would be ineffective or that the insurer’s preferred health care treatment or lack of treatment would lead to an equally good outcome.” Fifth Avenue Pain Control Center v. Allstate Insurance Co.,196 Misc 2d 801, 807-08 (Civil Ct. Queens Co. 2003). The insurer’s expert’s reliance solely on his peer review report will be insufficient to disprove medical necessity. Id, See, A.R. Medical Art, P.C. v. State Farm Mutual Auto, 11 Misc 3d 1075A, 815 NYS2d 493 (Civil Ct., Kings Co. 2006).

In fact, an AAEM publication issued one year after the AAEM minimonograph #

32 cited by Dr. Cole is diametrically opposed to Cole ‘s position that the electro diagnostic test is [*5]not medically necessary since it states that a ” (a) needle EMG is widely regarded as the technique of choice in the diagnostic evaluation of cervical radiculopathy.” Dr. Cole’s testimony that the test could serve no purpose is belied by the fact that the treating physician did initially recommend conservative management of the claimant’s condition by continuing with a regimen of physical therapy. The treating physician also performed physical exams on two occasions before ordering the test. It was only after the claimant’s injuries did not improve over a span of over a month that Dr. Anand recommended that the insured undergo electro diagnosis for the purpose of ruling out radiculopathy or other nerve damage. In fact, Dr. Cole admitted that an individualized electro diagnostic study was an extension of a detailed history and physical exam and that the symptoms that the insured was exhibiting could be indicative of conditions other than radiculopathy, for example, carpel tunnel syndrome.

In a case somewhat analogous to the instant matter, Dr. Cole offered similar testimony that the EMG/NCV test was not medically necessary since the patient was improving and the physical examination and history could readily determine that the assignor was suffering from radiculopathy, thus making the need for the testing redundant. A.R. Medical Art, P.C. v. State Farm Mutual, supra . There, as in the instant matter, the plaintiff offered no testimony to rebut Dr. Cole but rather the parties stipulated into evidence the letter of medical necessity for the NCV/EMG from a doctor employed by the assignee’s medical office. The court noted that the positions between the treating physician and Dr. Cole were contradictory and that the assignee’s doctor had used the electro diagnostic testing in light of the patient’s complaints to make an exact diagnosis, locate a possible lesion, determine the extent of injury and exclude possible conditions. The court ruled that: “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 medical diagnosis and treatment.”

This ruling applies with even greater force here where there was no evidence that the insured was improving from the conservative treatment recommended by the treating physician. Furthermore, only after two physical exams did the treating physician order the test to rule out radiculopathy.

In summary, Dr. Cole’s testimony failed to demonstrate the lack of medical necessity and judgment is rendered accordingly in favor of the plaintiff.

The foregoing constitutes the decision and order of the court.

Dated:March 5, 2008

Staten Island, NYHon. Katherine A. Levine

Judge, Civil Court