Monday, August 25, 2008

"Skillful and Thorough" Cross Examination of Insurer's Ortho Expert Is Not Rebuttal Evidence of Medical Necessity

Andrew Carothers, M.D., P.C. a/a/o Sabrina Defares v. GEICO Indem. Co.

(NYC Civil Ct., Kings Co., decided 8/20/2008)

Suit over an $879.73 MRI bill, denied based on a peer review. At trial, in an effort to carry its initial burden of proving that the MRI was not medically necessary, GEICO called orthopedic medicine expert "Dr. Bazos" (Andrew?) as its chief and only witness.

Dr. Bazos testified that he reviewed the MRI reports and determined that the MRI performed on the assignor was not medically necessary. He stated that a MRI is necessary when there is significant clinical findings and the patient is a surgical candidate. Dr. Bazos stated that the assignor's examination was proper and well documented; that there was no indication that the assignor was a candidate for surgery; that based on the assignor's diagnosis of soft tissue injury, said injuries usually resolve within four to six weeks with a conservative course of treatment consisting of physical therapy and anti-inflammatory medication. Dr. Bazos stated that the assignor had multiple post traumatic soft tissue injuries which did not necessitate the need for a MRI. That these injuries were typical post-accident injuries and that the performance of an MRI for such injuries was a deviation from the generally accepted standard of care in the medical profession.

On cross examination, Plaintiff's counsel attempted to impeach the credibility of Dr. Bazos, claiming that in 90 percent of his peer reviews, Dr. Bazos found that MRIs were medically unnecessary. Plaintiff's counsel cross-examined Dr. Bazos concerning the number of times he testified, his understanding of the use of peer reviews, the number of peer reviews he performed, the fees charged for each peer review, and the fees he receives for his testimony at trial. Counsel also cross-examined Dr. Bazos concerning his basis for his opinion of lack of medical necessity, claiming that his opinion was contrary to the views expressed in Campbells Operative Orthopedics and that his opinion was reached based on his financial interests with GEICO.

In entering judgment for GEICO dismissing the complaint, Kings Civil Court Judge Sylvia Ash ruled:

While, it is well recognized that compensation has a direct and vital bearing on credibility, the fact that Dr. Bazos had a great deal of experience testifying on behalf of insurance companies does not alone support an inference that his opinion is not honest in this case (see Scott v. Spanjer Bros., Inc., 298 F.2d 928). Dr. Bazos' evidence cannot be disregarded simply because he is an "employee" of the Defendant. While employment or other relationship of a witness may be considered on the point of his credibility in weighing his evidence against opposing evidence, it is not by itself a sufficient reason for disregarding his testimony. Although the fact that Dr. Bazos testified on numerous cases on behalf of Insurance Companies may support the inference of bias, if direct unimpeached, uncontradicted, and reasonable testimony is shown which is consistent with Dr. Bazos' finding of lack of medical necessity, no lawful finding can be made of the existence of bias (see Arnall Mills v. Smallwood, 68 F. 2d 57). And if any bias was established it would simply go to the weight given to the testimony (see Khan v. New York State Dept. Of Health, 17 App. Div. 3d 938). To establish the existence of bias sufficient to disregard Dr. Bazos' testimony, Plaintiff would have to show that his opinion flowed from the claimed bias (see Cohen v. Mills, 271 App. Div. 2d 826).

The Court has assessed and accepted Dr. Bazos' uncontradicted expert opinion and makes the following findings: (1) his testimony was credible and convincing (2) his opinion was medically and factually supported and (3) his opinion was not based on any alleged bias. Dr. Bazos' testimony supplemented his detailed peer review report and fully and explicitly set forth his reasons for the denial. Therefore, the Court finds that Defendant has met its prima facie burden of demonstrating lack of medical necessity for the services rendered, thus shifting the burden to Plaintiff to establish medical necessity. At trial, Plaintiff did not submit any rebuttal evidence, such as the testimony of the referring physician or of its own medical expert, to establish that the services rendered to its assignor were medically necessary. Instead, Plaintiff relied solely upon its cross examination of Defendant's medical expert, Dr. Bazos. However, despite Plaintiff's counsel's skillful and thorough cross examination, he was unable to refute Dr. Bazos' testimony thus failing to meet its burden of establishing medical necessity.

Even a skillful and thorough cross examination, without affirmative proof of some kind, may not be enough. Regardless of how artful the cross examination, I've yet to see any expert change her opinion at trial and say, "You know counselor, that's an awfully good point. Nevermind what I said on direct. "


Huge Fustercluck said...

I think the headline needs revision. Shouldn't it read, "'Skillful and Thorough' Cross Examination of Insurer's Ortho Expert Fails To Rebut Testimony Establishing Lack of Medical Necessity" ?

Roy A. Mura said...

How bout this?

Point trying to get across is that even an adroit cross examination does not usually constitute rebuttal evidence, in and of itself.