Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co. (2010 NY Slip Op 50053(U))

District Court of Nassau County, First District

30566/05

Plaintiff – Friedman, Harfenist, Langer & Kraut

Defendant – DeSena & Sweeney

Fred J. Hirsh, J.

This action appears to be a simple claim to recover first party no-fault benefits for a cervical MRI and lumbar MRI performed by Elmont Open MRI on Almarto Wiggins (“Wiggins”) on March 24, 2005. State Farm Fire and Casualty Company (“State Farm”) denied payment for these MRIs on the grounds they were not medically necessary based upon the peer review report of Edward M. Weiland, M.D. (“Dr. Weiland”). Dr. Weiland’s letterhead and curriculum vitae indicates that he is a board certified neurologist.

The denial raises the issue of who is a proper expert to issue a peer review report and to testify regarding whether treatment or tests are medically necessity.

Wiggins was injured in an automobile accident that occurred on February 9, 2005. State Farm was the insurance carrier that provided no-fault benefits to Wiggins.

On February 16, 2005, Wiggins was examined by a neurologist, A. Etamadi, M.D. The neurological exam was essentially normal. Dr. Etamadi diagnoses relevant to this action are a cervical spine sprain/strain and a lumbar spine sprain/strain. Dr. [*2]Etamadi recommended a follow up visit in four weeks and an orthopedic consultation.^[FN1]

Wiggins also came under the care of a chiropractor, Mark Heyligers, D.C

(“Dr. Heyligers”) on February 15, 2005. A sheet a heading “Initial Report” prepared by Dr. Heyligers is dated 3/22/04. The face page of the “Initial Report” makes reference to objective findings and x-ray analysis contained in an attachment thereto. The x-ray analysis (Roentgenological Report) is attached to the copy of the Initial Report in evidence. The objective findings are not.

Prior to March 24, 2005, Dr. Heyligers recommended Wiggins have a cervical and lumbar MRIs. The exact date these MRIs were ordered is not contained in the records introduced into evidence. The referral sheet for the MRIs incorrectly places Wiggins date of birth on the line for the referral date. The referral sheet does not state the reason the MRIs were ordered. However, the referral sheet states the referring doctor is Dr. Heyligers. The MRIs were performed by plaintiff on March 24, 2005. The reports of the reading of the MRIs were sent to Dr. Heyligers.

Wiggins received chiropractic care and treatment from Dr. Heyligers from February 15, 2005 to at least May 25, 2005. This clear because Dr. Heyligers issued a letter of medical necessity regarding the cervical and lumbar MRIs dated May 25, 2005. None of the records relating to the treatment Wiggins received from Dr. Heyligers other than the Initial Report and the x-ray analysis were reviewed by Dr. Weiland or placed in evidence at trial.

Dr. Heyligers May 25, 2005 letter diagnoses Wiggins as having a cervical sprain/strain, lumbar sprain/strain, brachial radiculitis and neuritis of sciatic nerve. Dr. Heyligers recommended physical therapy and chiropractic care three times a week. Dr. Heyligers states the diagnostic testing was recommended to permit him to provide Wiggins with proper treatment.

Dr. Weiland did not testify at trial. State Farm had Marlon Seliger, M.D. (“Dr. Seliger”) prepare a re-peer report. Dr. Seliger is a medical doctor whose field of expertise is neurology. State Farm called Dr. Seliger testified on the issue of medical necessity.

The parties stipulated to plaintiff’s prima facie case. The parties also stipulated to the timely denial of the claim on the grounds of lack of medical necessity. The parties stipulated into evidence the peer review reports of Dr. Weiland and Dr. Seliger, the medical reports and records reviewed by the doctors in preparing their peer review reports and the other information and documentation reviewed by the peer review doctors.

Dr. Seliger concurred with Dr. Weiland’s determination the cervical and lumbar MRIs were not medically necessary. Dr. Seliger testified the medical records he reviewed indicated an essentially normal neurological examination of the cervical and [*3]lumbar spine. The neurologist who examined Wiggins a week after the automobile accident diagnosed Wiggins as having a cervical sprain/strain and a lumbar sprain/strain as a result of the automobile accident. The only diagnoses Dr. Seliger found in the Initial Report of Dr. Heyligers was a mild cervical and lumbar myospasm.

Dr. Seliger further testified since the doctors providing treatment to Wiggins had reached a diagnosis and had developed a treatment plan without performing the MRIs the MRIs were not medically necessary. Cervical and lumbar MRIs are not medically necessary under these circumstances unless the results of the MRIs would influence treatment.

Dr Weiland’s peer review report and State Farm’s denials predate Dr. Heyligers’s letter of medical necessity. Therefore, this letter was also not considered by State Farm in issuing its denials.

Dr. Seliger did not review Dr. Heyligers’s letter of medical necessity in preparing his re-peer report. He reviewed only those records and reports that Dr. Weiland had reviewed.

Dr. Heyligers’s letter of medical necessity was introduced into evidence at trial. Dr. Seliger reviewed the letter of medical necessity and testified it did not change his opinion that the MRIs were not medically necessary.

DISCUSSION

A presumption of medical necessity attaches to a timely submitted no fault claim.

All County Open MRI & Diagnostic Radiology. P.C. v. Travelers Ins. Co., 11 Misc 3d 131(a) (App.Term 9th & 10th Jud. Dists. 2006). Since the parties stipulated to plaintiff’s prima facie case, the cervical and lumbar MRIs were presumptively medically necessary.

The burden then shifts to the defendant to rebut the presumption of medical necessity. A.B. Medical Services PLLC v. Utica Mut. Ins. Co., 10 Misc 3d 50 (App.Term 2nd & 11th Jud. Dists. 2005); and A Plus Medical, P.C. v. Government Employees Ins. Co., 21 Misc 3d 799 (Civil Ct. Kings Co. 2008).

In order to meet this burden, the defendant must establish the treatment or tests in question were not in accordance with generally accepted medical/professional practice. Delta Medical Supplies, Inc. v. NY Central Mutual Ins. Co., 14 Misc 3d 1231(A) (Civil Ct. Kings Co. 2007); and CityWide Social Work & Psychological Servs. V. Travelers Indem. Co., 3 Misc 3d 608 (Civil Ct. Kings Co. 2004).

The defendant must prove there is a factual basis and medical rationale for the opinion of the peer review doctor the services rendered or tests performed by plaintiff were not medically necessary.. Prime Psychological Services, Progressive As. Ins. Co., 24 Misc 3d 1244(A) (Civil Ct. Richmond Co. 2009); and Nir v. Allstate Ins. Co., 7 Misc 3d 544 (Civil Ct. Kings Co 2005).

Expert testimony is required to establish what the generally accepted medical/professional practices are and how ordering the tests or treatment departed from generally accepted medical/professional standards. Dunn v. Khan, 62 AD3d 828 (2nd Dept. 2009); and Lyons v. McCauley, 252 AD2d 516 (2nd Dept. 1998).

Chiropractics is separate and distinct from the practice of medicine so that a physician’s standard is not controlling upon a chiropractor in the practice of his or her profession. Taormina v. Goodman, 83 AD2d 1018 (2nd Dept. 1978). In determining [*4]whether treatment performed or tests ordered by a chiropractor are medically necessary, the court must determine the generally accepted standard of care in the field of chiropractics and whether the providing the treatment or ordering of the tests was in accordance with those generally accepted chiropractic standards. 1B NY PJI3d 2:150, at 802 (2009).

To qualify as an expert, the witness must possess “…the requisite skill, training, education, knowledge or experienced from which it can be assumed that the information imparted or the opinion rendered is reliable (citations omitted).” Matott v. Ward, 48 NY2d 455, 460 (1979); and de Hernandez v. Lutheran Medical Center, 46 AD3d 517 (2nd Dept. 2007). When a doctor testifies outside his area of expertise, the party calling the doctor must lay a foundation establishing the doctor is familiar with the generally accepted practice in the area in question to lay a proper a foundation for the expert’s opinion. Shectman v. Wilson, -A.D.3d-, 2009 WL 4674047 (2nd Dept. 2009); and Geffner v. North Shore University Hosp., 57 AD3d 838 (2nd Dept. 2009).

State Farm had a neurologist perform the peer review and called a neurologist to testify the cervical and lumbar MRIs ordered by a chiropractor were not medically necessary. Even though the parties stipulated Dr. Seliger was an expert, his field of expertise is neurology not chiropractics. State Farm did not establish Dr. Weiland, the peer reviewer, or Dr. Seliger, the re-peer, were familiar with generally accepted chiropractic practices or the generally accepted reasons why a chiropractor would order a patient to have a cervical or lumbar MRI.^[FN2] Therefore, Dr. Weiland’s peer review report and Dr. Seliger’s testimony are insufficient to rebut the presumption of medical necessity that attaches to a timely filed no-fault claim.

For the foregoing reasons, the court finds for the plaintiff.

The clerk is directed to enter a judgment in favor of the plaintiff and against the defendant in the sum of $1791.73 together with interest and legal fees in accordance with the No-Fault Law and Regulations and costs and disbursements as taxed by the clerk.

Submit judgment.

SO ORDERED:

Hon. Fred J. Hirsh

District Court Judge

Dated: January 6, 2010

Footnotes

Footnote 1:Wiggins did see an orthopedist on March 7, 2005 on recommendation of Dr. Heyligers. The orthopedic consult was for injuries to Wiggins right knee. The orthopedic consult report makes no mention of the orthopedist having examined Wiggins cervical or lumbar spine or recommending any care, treatment or tests for the cervical or lumbar spine.

Footnote 2:Dr. Seliger would have been qualified to testify the MRIs were not medically necessary had the tests been ordered by a neurologist. However, the record reflects Wiggins was examined once by a neurologist who did not order or recommend either MRI.