NO-FAULT – MEDICAL NECESSITY DEFENSE – BURDEN OF PROOF – PSYCHIATRIC EVALUATION & TESTING
CityWide Social Work & Psychological Servs., PLLC v. Allstate Ins. Co.
(Dist. Ct., Nassau Co., decided 7/1/2008)
This decision includes a good discussion of a no-fault insurer's burden of proof on a medical necessity defense. Allstate timely denied payment of plaintiff medical provider's $958.32 bill for psychiatric evaluation and testing services. Nassau District Court Judge Robert Bruno conducted a trial on Allstate's lack of medical necessity defense, noting preliminarily in his decision:
A no-fault insurer defending a denial of first-party benefits on the ground that the billed for services were not medically necessary must show that the services provided were inconsistent with generally accepted medical/professional standards. The opinion of the insurer's expert, standing alone, is insufficient to carry the insurer's burden of proof that the services were not medically necessary (see CityWide Social Work & Psychological Services v. Travelers Indem. Co., 3 Misc 3d 608, 777 NYS2d 241 [Civ. Court Kings County 2004]; Ultimate Medical Supplies v. Lancer Insurance Co., 7 Misc 3d 1002(A), 801 NYS2d 243, 2004 NY Slip Op 51860(U) [Civil County Kings County 2004]; Expo Medical Supplies, Inc. v. Clarendon Insurance Company, 12 Misc 3d 1154(A), 819 NYS2d 209, 2006 NY Slip Op 50892(U), 2006 WL 1341418). At trial, Defendant bears the burden of proof for its claim of lack of medical necessity (see Expo Medical Supplies, Inc. v. Clarendon Insurance Company, supra; A.M. Medical Services v. Deerbrook Insurance Co., Slip Copy, 18 Misc 3d 1139A, 2008 NY Misc. LEXIS 749, 2008 WL 518022 (NY City Civ. Ct.), 2008 NY Slip Op. 50368(U)).Allstate produced Dr. Samuel Rock for testimony at trial. Plaintiff called no witnesses to rebut Dr. Rock's testimony. Judge Bruno summarized Dr. Rock's testimony as follows:
In order for Defendant to prevail, Defendant must establish a factual basis and medical rationale for its claim of lack of medical necessity (see Nir v. Allstate Insurance Co., 7 Misc 3d 544, 796 NYS2d 857 [Civ. Ct. Kings Co. 2005]).
Defendants' medical expert, Dr. Samuel Rock, testified that he reviewed the medical records and reports of the claimant and that he had sufficient information to render an opinion as to whether the services rendered were medically necessary. Dr. Rock testified on direct examination that he reviewed the medical records he received from Dr. Braun as well as other medical reports and results of the Beck inventory tests.Without any rebuttal testimony from the plaintiff, Judge Bruno found that plaintiff had failed to refute Allstate's expert witness testimony that the services provided deviated from the generally accepted medical professional standards. Judgment for Allstate.
Dr. Rock also testified that the general accepted medical/professional standard for conducting the initial interview is six (6) weeks post-accident and to conduct the initial interview any earlier could result in a false positive, as most individuals experience some type of psychological stress after an accident, but the initial stress dissipates several weeks thereafter.
In the instant case, Dr. Braun conducted the initial interview on September 12, 2003, thirteen (13) days post accident, which according to Dr. Rock was improper and against generally accepted medical/professional standards.
In addition to the foregoing, Dr. Rock testified that had the initial interview been properly conducted, a determination could have been made that claimant was not seriously psychologically disturbed and therefore no additional testimony [sic] would be necessary.
According to Dr. Rock, the medical reports he reviewed does not indicate whether the claimant was ever treated, or whether Dr. Braun ever examined claimant or just relied upon the paperwork generated from claimant's self-administered Beck inventory tests.
In addition to the foregoing, Dr. Rock testified that the results of Dr. Braun's tests indicated claimant had the mildest form of anxiety, and in Dr. Rock's opinion, that diagnosis could have been determined during a proper forty-five (45) minute interview rendering subsequent testings unnecessary.
On cross-examination, Dr. Rock admitted, he did not review the accident report, hospital records or Dr. Gelphan's report in concluding the tests performed on claimant were not medically necessary. However, on re-direct examination, Dr. Rock testified that even if he had reviewed those reports they would not have effected his opinion regarding the lack of medical necessity.