Friday, September 4, 2009

Testimony of Re-Peer Review Doctor Not Limited to Rationale of Original Peer Review Report

Prime Psychological Servs., P.C. a/a/o James Gajadhar v. Progressive Cas. Ins. Co.
(NYC Civil Ct., Richmond Co., decided 8/5/2009)

In the words of New York City Civil Court, Richmond County, Judge Katherine Levine, "[t]his case was submitted to the court to determine whether a re-peer doctor's testimony must exactly replicate what is contained in a peer review report generated by another doctor, and whether the re-peer doctor can opine that certain services are contrary to generally accepted standards when the peer review report does not explicitly set forth that conclusion."  In the opinion of Judge Levine, the answers to these questions are no, the re-peer doctor's testimony must not exactly replicate the original peer review's contents, and yes, the re-peer doctor may add his opinion that the billed services were contrary to generally accepted medical standards.

Progressive denied payment of plaintiff provider's bills for psychological testing , a diagnostic interview, individual psychotherapy and other services it provided to the assignor based on a peer review report of Dr. Moses Weksler dated February 9, 2007, which found that the psychological services were not medically necessary.  Since Dr. Weksler was unavailable to testify when the suit reached trial, Progressive presented as its expert witness, Dr. Robert Daley, who conducted a re-peer review by reading the peer review report of Dr. Weksler and reviewing the records listed on the original peer review report.  While both doctors reached the same conclusion that the five psychological services provided to the assignor were not medically necessary, and specified at length as to the fallacies of the tests, Dr. Daley added that the services at issue were not in accordance with generally accepted medical procedures.

At trial, Dr. Daley testified that he agreed with Dr. Weksler's opinion that the tests were not medically necessary and basically reiterated all the points made by Weksler in the peer review report.  He testified that the five tests at issue were utilized for screening a large number of persons and that they did not add to the diagnostic formulation and treatment. He then opined that the use of the tests deviated from the generally accepted procedures in psychology since a psychologist should first determine whether someone is suffering from a disease through an interview, not testing. The standard of care also incorporated the precept that the tests should only be performed if specific questions arose about the diagnosis or if the doctor could not develop a diagnosis.

Counsel for plaintiff objected to Dr. Daley's testimony about generally accepted medical procedure because Dr. Weksler made no such finding in his report. Plaintiff contended that the breadth of Daley's testimony was  limited to the rationale contained in the peer review report and that both the re-peer doctor and the court were bound by what was written in the peer review report and that the court was limited to adducing "whether the original rationale was correct."

Progressive contended that a re-peer doctor who testifies on medical necessity may refer to the generally accepted medical practice even though the peer review report by the original doctor "does not explicitly state that point" because once an expert is qualified as an expert, his testimony is governed by CPLR 3101(d), which only mandates that an expert disclose "in reasonable detail" the subject matter on which he is going to testify. Furthermore, Progressive asserted that even if a medical expert testifying at trial about medical necessity does not directly state whether the services were rendered in accordance with the generally accepted medical practice, a court can infer from the testimony whether the generally accepted medical practice was followed.

In overruling plaintiff's objection to Dr. Daley's testimony about generally accepted standards of psychological practice and procedures, Judge Levine held:
Although there have been few decisions elucidating defendant's exact burden of proof to establish that the services were medically unnecessary, Nir. v. Allstate Insurance Co., 7 Misc 3d 544, 546 (Civil Ct, Kings Co. 2005), at the minimum, a defendant must "establish a factual basis and medical rationale for the lack of medical necessity of plaintiff's services." Id. See also, CityWide Social Work, supra, A.B. Medical Services, supra. The New York courts "explicitly or implicitly look to generally accepted practice in determining medical necessity. Citywide Social Work , supra at 613.

Generally accepted practice "is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling." CityWide, supra at 616. Millennium Radiology, P.C. v. New York Cent. Mut., NY Slip Op 50877U, 23 Misc 3d 1121A (Civil Ct., Richmond Co. 2009) . The doctor must submit "objective testimony or evidence to establish that his opinion is what is generally accepted in the medical profession." Williamsbridge Radiology & Open Imaging v. Travelers Indemnity Co., 2007 NY Slip Op. 50224U, 14 Misc 3d 1231A (Civil Ct., Kings Co. 2007).
"A peer review's medical rationale is insufficient if it is unsupported by or controverted by evidence of medical standards." Nir supra, 7 Misc 3d at 547. Thus, in order to carry the insurer's burden of proof that the services were not medically necessary, the insurer's expert must show that the services provided were inconsistent with generally accepted medical/professional standards. Citywide Soc. Work & Psychological Servs., PLLC v. Allstate Ins. Co., 2008 NY Slip Op 51601U, 20 Misc 3d 1124A (Sup. Ct., Nassau County 2008). Ultimate Medical Supplies v. Lancer Insurance Co., 7 Misc 3d 1002(A), 2004 NY Slip Op 51860(U) (Civil Ct., Kings Co. 2004). "Although peer review, or general acceptance in the relevant scientific community, is not always a sine qua non for admissibility of an expert's theory, see Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) ,the absence of such review or acceptance is often indicative of the unreliability of an expert's opinion." Seneca Meadows, Inc. v. ECI Liquidating, Inc., 427 F. Supp. 2d 279, 304, (W.D.NY 2006). 

In the instant matter it is clear that the re-peer doctor, by explicitly mentioning the term "generally accepted medical standard," bolstered the original peer report's conclusion that there was no medical necessity for the five psychological tests performed on the assignor. Defendant claims that the original doctor, in sum and substance, gave the same rationale for lack of medical necessity as was testified to by the second doctor since he mentioned the same factors and rationale albeit without using the talismanic phrase "generally accepted medical standards."

CPLR 3101(d)(1) provides that: Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion.

CPLR 3101(d)(1) "does not require a party to respond to a demand for expert witness information 'at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute', unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party" Shopsin v. Siben & Siben, 289 AD2d 220, 221 (2d Dep't 2001); Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754 (2d Dep't 1999). In LaMasa v. Bachman, 56 AD3d 340 (1st Dept. 2008), the First Department upheld the lower court's refusal to preclude the testimony of plaintiff's experts concerning the seriousness of the injury plaintiff sustained in an automobile accident, despite the discrepancies that existed between some of their testimony and their reports, since "defendant did not show a willful attempt to deceive or prejudice, and such discrepancies, which defendant was free to raise on cross-examination, go only to the weight, not the admissibility, of the testimony" Id. At 341.See, Hageman v Jacobson, 202 AD2d 160, 161 (1st Dep't 1994);; Dollas v Grace & Co., 225 AD2d 319, 321 (1st Dept. 1996). 

Plaintiff cites Dilon Medical Supply Corp. v. NY Central Mutual Ins., 2007 NY Slip Op. 52454U, 18 Misc 3d 128A (App. Term, 2d Dept. 2007), for the proposition that the re-peer doctor's reasoning as to why he, as opposed to the original doctor, believes the tests were not medically necessary is completely irrelevant. In Dilon, supra, as in the instant matter, the doctor who wrote the peer review report was unavailable, hence causing the defendant's to call a re peer doctor. Plaintiff sought to preclude the re-peer doctor from testifying. The Appellate Term found that the issue before it was whether the rationale for the conclusion in the peer review report, upon which the defendant based its denial was correct. "Since the defendant sought to call a medical expert witness, who was available for cross-examination, and his testimony as to the lack of medical necessity...would be limited to the basis for the denials as set forth in the original peer review reports, the expert witness should have been permitted to testify." Id . See. Spruce Med. & Diagnostic, P.C. v. Lumbermen's Mut. Cas. Co., 2007 NY Slip Op 51104U, 15 Misc 3d 143A (App. Term, 1st Dept. 2007) (court denies motion to preclude re-peer doctor from testifying since defendant's expert witness "would be subject to full cross-examination and his testimony as to lack of medical necessity would be limited to the basis for denial set forth in the original peer review report").

In SK Medical Services, P.C. v. New York Central Mutual Ins. Co., 12 Misc 3d 686 (Civil Ct., Richmond Co. 2006), Judge Sweeney further amplified upon the interplay between the disclosure of the peer review report and the subsequent testimony of a re peer doctor. The court found that there was no reason to deny the testimony of the re-peer doctor since defendant had issued a timely denial of claim which asserted lack of medical necessity as a defense and which contained the information called for in the prescribed denial of claim form. 

Furthermore, the qualification of a witness as an expert presumes that he is knowledgeable about and may testify about the generally accepted medical standards. Olivier v. Robert L. Yeager Mental Health Ctr., 398 F.3d 183, 190 (2d Cir. NY 2005). The requirement that the plaintiff introduce expert medical testimony is imposed in part because "without expert assistance a jury will often have no understanding of what constitutes reasonable behavior in a complex and technical profession such as medicine." Id at 190 citing Sitts v. United States, 811 F.2d 736, 740 (2d Cir. 1987). See, Paul v. Boschenstein, 105 AD2d 248, 249(2d Dep't 1984).For that reason "expert testimony has been held to be admissible not only to explain highly technical medical or surgical questions (e.g., Meiselman v Crown Hgts. Hosp., 285 NY 389), but has also been found appropriate to clarify a wide range of issues calling for the application] of accepted professional standards." Selkowitz v. County of Nassau, 45 NY2d 97, 102 (1978). 

Moreover, the expert should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable." Matott v. Ward, 48 NY2d 455, 459(1979); McCormick, Evidence [2d ed], § 13. In order for a court to credit the testimony of a qualified expert, it must be convinced that the expert exhibit "a degree of confidence in his conclusions sufficient to satisfy accepted standards of reliability. Matott, supra at 459-60. 

Since the sine qua non of an expert's testimony is to opine how accepted professional standards apply to the case at hand, this court will not preclude Dr. Daley from testifying that the five psychological tests rendered were inconsistent with generally accepted medical procedures. The basis for this conclusion - that a psychologist should first obtain a diagnosis from an interview and that only if he is unsuccessful in this endeavor or has questions about the diagnosis should he consider utilizing these tests - was first set forth in the peer review report albeit without an explicit reference to the generally accepted standards. Furthermore, Dr. Weksler cited to two authoritative reports or treatises to back up his opinion and also mentioned that in order for a procedure to be medically necessity, it must be in accordance with generally accepted standards of medical practice. 

Finally, plaintiff cannot validly argue that it was subjected to surprise or prejudice by the re-peer doctor since his testimony basically dovetailed what was contained in the peer review report which had previously been provided to plaintiff. Dr. Daley did not postulate a new theory during his testimony which surprised plaintiff and he was subjected to cross-examination.  Plaintiff could have reasonably expected that once it agreed to the qualifications of an expert, said witness might refer to a generally accepted medical standard.

In light of the above, the court finds that defendant has sustained its burden of proving lack of medical necessity for the five tests and that plaintiff has not rebutted this testimony by producing its own witness or treatises proving that the tests were medically necessary.
Dr. Daley did not rebut the presumption of medical necessity that attached to the initial psychiatric diagnostic interview, two sessions of psychotherapy and explanation and interpretation of results to the primary physician which totaled $438.09. The trial stipulation indicated that Progressive has already made a partial payment to plaintiff of $314.68. As such, the court awarded judgment to plaintiff in the amount of $123.41 plus interest from the date of the summons and complaint plus costs and attorneys' fees.

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