Monday, September 15, 2008

Court Rejects "Novel" Argument That Incomplete EMG & NCV Tests Render Them Medically Unnecessary

Complete Med. Care Servs. of NY, P.C. a/a/o Vanessa Garcia v. State Farm Mut. Auto. Ins. Co.
(NYC Civil, Queens Co., decided 8/22/2008)

ENDs (electroneurodiagnostic tests) continue to stimulate challenge and litigation in the no-fault world, principally because of the perception -- or some would say reality -- that they are over-prescribed to generate increased billings for providers. Referring providers have learned, literally by the trial and error of themselves and others, better to support their referrals or prescriptions of costly ENDs and document their purported medical necessity in order to warrant payment of no-fault benefits.

In this case, State Farm did not challenge the front end of the referral, but the back end of the testing, arguing that the incomplete performance of the electromiogram (EMG) and nerve conduction velocity (NCV) tests made their results useless in terms of the diagnosis and treatment of the assignor patient and, as such, those tests were rendered medically unnecessary as a practical matter and therefore not eligible for reimbursement under no-fault.

In what appears to be a case of first impression, and calling State Farm's argument "unique" and "novel", Queens Civil Judge William Viscovich rejected State Farm's argument and awarded payment for the tests, holding:

Defendant's position seeks a retrospective determination of medical necessity but this court can find nothing in the precedents discussed or in the No-Fault statute and related regulations that establish such a position. In fact, to the contrary, they seem to require a determination of medical necessity be made prospectively from the standpoint of the insured at the time a treatment or service is rendered, not at a time when its effectiveness or lack thereof can be established retrospectively.

This is particularly true when one considers that the expenses sought in No Fault litigation are in reality expenses incurred by the insured, not the provider. A medical provider does not "incur" expenses when it treats an insured. Rather, the provider accepts an assignment of the insured's benefits, allowing it to step into the shoes of the insured for litigation purposes. In theory, if not reality, the insured, not the provider, is the one seeking reimbursement for expenses already incurred. As such, the No Fault statute was clearly intended to "deliver better protection for the insured and to pay off claims quickly.(NY Legis. Ann. 1973 p. 298)". Pavone v. Aetna Cas. & Sur. Co., 91 Misc 2d 658, at 663 [Sup Ct. Monroe County 1977] and No Fault regulations have been interpreted in favor of the insured's rights (and through an assignment of benefits, the rights of the provider), especially as they relate towards speedy payment of proper claims on behalf of the insured. ( See Presbyterian Hospital v. Maryland Casualty Co., 90 NY2d 274 [1997]).

To adopt defendant's position, quite frankly, would be to dramatically and judicially change the very nature of No Fault litigation. It would result in these proceedings all too often delving into issues more related to medical malpractice or professional misconduct litigation, a fact reflected by defendant's brief, which cites as authority a matter decided before the State Board of Professional Medical Conduct (See In the Matter of Carl Dobson, M.D., 2006 NY Phys. Dec. Lexis 411 [2006] ). The nature of such litigation would defeat the very purpose of the No-Fault statute which is "to permit liberal recovery of moneys actually expended in the treatment of accident-related injuries ." Vidra v. Shoman, 59 AD2d 714, at 716 [2nd Dept. 1977]). (See also Presbyterian Hospital v. Aetna, 233 AD2d 431 [2nd Dept. 1996]). This is only reinforced by the Court of Appeals findings that the regulations "are written to encourage prompt payment of claims, to discourage investigation by insurers and to penalize delays." Dermatossian v. NYCTA, 67 NY2d 219, at 225 [1986].

Nowhere in the statutory or regulatory scheme are "necessary expenses" defined to exclude charges for services that were duly prescribed, but improperly or inadequately performed. Insurance Law Section 5102(a)(1) defines "basic economic loss" as including, inter alia, "All necessary expenses incurred...". If either the legislature or the Superintendent of Insurance had intended that the determination regarding medical necessity should be made in hindsight, with regard for whether a procedure was properly performed, a statutory or regulatory change could be made to define necessary expenses as including payment for "properly performed medical procedures." Neither has chosen to do so.

After a reading of the No-Fault statutes and regulations, the precedents established by both Judge Siegal and Judge Agate and the testimony, evidence and briefs submitted in this matter, this court holds that even if defendant has demonstrated that a prescribed medical service or procedure may not have been conducted properly, reimbursement is warranted so long as said service or procedure was medically necessary. The issue of proper performance of such service or procedure is best left for other areas of litigation practice and/or, where appropriate, the State Board for Professional Medical Conduct.

The decision contains a detailed discussion of the expert medical proof State Farm proffered through Dr. James B. Sarno, who, the court noted, acknowledged that a complete bilateral EMG/NCV of the upper and lower extremities was, in fact, medically necessary for the treatment and care of the assignor for injuries she sustained in a motor vehicle accident. Dr. Sarno testified, however, that an insufficient number of muscles in both the upper and lower extremities were tested, a deviation from the accepted standard of care for administering the tests when "assessing evidence of electro-diagnostic radiculopathy." Plaintiff's expert, Dr. Finkelstein (no first name given), while agreeing that the testing may not have been "thorough", testified that it was "not incomplete". Both Dr. Sarno and Dr. Finkelstein acknowledged that EMG/NCVs are extremely uncomfortable and painful for the patient -- Dr. Sarno maintaining that a proper testing regimen in this case required the placing of needles in 48 muscles, while Dr. Finkelstein's position was that, for this case, the placing of needles in 22 muscles was sufficient, particularly if the patient was having a difficult time dealing with the procedure.

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