Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Mut. Auto. Ins. Co. (2010 NY Slip Op 50202(U))

District Court of Nassau County, Second District

02593/08

Michael A. Ciaffa, J.

The principal issue presented at the trial of this no-fault action concerns the defendant’s burden to affirmatively prove a defense of lack of medical necessity through a complete set of medical records.

The limited medical records submitted to defendant’s peer review doctor show that a treating doctor’s “diagnostic plan” included MRIs of claimant’s spine and left shoulder, which were arguably unnecessary and premature at the time of the doctor’s evaluation, only one day post accident. However, the MRIs, themselves, were not performed for several weeks. In the meantime, claimant presumably followed the doctor’s plan respecting a course of conservative treatment, which included “a conservative physical medicine and rehabilitation program” with physical therapy 3 to 5 times a week. But the record is silent on whether claimant’s symptoms improved, got worse, or stayed the same, during the course of that program.

Without doubt, if defendant had denied a claim involving MRIs performed within a few days of the initial evaluation, it would have a strong argument that the tests were premature and unnecessary. But the facts at bar are different. The MRIs, for reasons not disclosed, were not performed immediately. If claimant underwent follow-up care, as prescribed, the particulars are not part of the trial record. Contrary to defendant’s argument that the Court should draw an adverse inference against plaintiff for not producing a complete medical record, the plaintiff, aided by the presumption of medical necessity, need not produce a single bit of evidence until defendant meets its considerable burden under the standards of Nir v. Allstate Ins. Co., 7 Misc 3d 544, 546-7 (Civ Ct Kings Co 2005).

The Court declines defendant’s invitation to determine the sufficiency of its medical necessity defense based solely upon the facts known by the treating doctor [*2]when a given test is recommended. Rather, decisions to recommend tests prematurely, or without an adequate documented objective basis, are merely circumstances that must be weighed in the overall context of defendant’s burden and the presumption of medical necessity.

Defendant, here, met only half of its burden. It proved, to the Court’s satisfaction, that the tests were recommended prematurely, and without adequate justification, just one day after the accident. Nevertheless, at least in cases, like this one, where a lengthy interval of time preceded the subject tests, defendant must be held to its burden of disproving the presumed medical necessity of the tests at the time they were actually conducted.

In reaching this conclusion, the Court believes that it follows, logically, from basic no-fault law principles. Although it has not found any case directly in point, the defendant’s burden is well established, and consistent with that burden, defendant will necessarily need to submit a complete medical record in most cases in order to satisfy its burden.

For these reasons, the Court concludes that the absence of medical documentation is a critical factor under the circumstances at bar. Without knowledge of the claimant’s condition and response to treatment in the weeks that followed the initial evaluation, the Court cannot determine whether the MRIs were, indeed, unnecessary and inappropriate at the time they were performed. Since defendant carries the burden on this issue, the Court must find for the plaintiff.

Submit Judgment on Notice.

SO ORDERED:

DISTRICT COURT JUDGE

Dated: January 27, 2010

CC:Friedman, Harfenist, Kraut & Perlstein, Esqs.

Lawrence N. Rogak, LLC [*3]

MAC:ju 1/14/10