Plaintiff medical services provider sued to recover $2,143.90 in fees for services it provided to assignor Nato Seselia for EMG/NCV tests.

Defendant State Farm denied payment on the basis that the tests were medically unnecessary. The only issue at trial was whether the EMG/NCV tests were necessary. Therefore, held the court, defendant bore the burden of proof on this issue.

Testifying on behalf of State Farm was Dr. Joseph Cole, board certified in physical and rehabilitation medicine. Cole testified that he reviewed plaintiffs medical reports dated April 30, 2003 and May 20, 2003, a police accident report and a report dated May 6, 2003 for range of motion testing. Cole testified that the EMG/NCV tests performed by plaintiff were unnecessary because there was already a diagnosis. Dr. Cole testified that the tests are only ordered if it would alter the diagnosis or if it was needed to determine location of nerve injury (i.e. neck or wrist). He further testified that the medical documentation reflected that the assignor was improving and there was no indication of a diagnostic dilemma necessitating the test.

Plaintiff Counters With Letter

No one testified on behalf of plaintiff in response to Coles testimony; instead the parties stipulated into evidence a Letter of Medical Necessity for NCV/EMG Test from Alexander Rozenberg, MD, FAAPMR, board certified in physical medicine and rehabilitation.

The letter indicated that the assignor presented to plaintiffs office with complaints of neck pain with radiation from the neck to the right shoulder and arm with numbness, weakness and tingling sensation in the right shoulder and with restriction of neck movement. The assignor had been diagnosed with cervical paraspinal muscle and ligaments strain/sprain secondary to acceleration/deceleration injury.

The letter further indicated that Rozenberg ordered electromyography studies in order to determine the exact diagnosis, possible localization, and extent of injury; better predict prognosis for recovery and possible residual neurologic deficits, plan possible deep electrical stimulation nerve block or medicamentous nerve block or neurosurgical evaluation if all other treatment modalities failed.

The Letter of Medical Necessity went on to indicate that the tests were done to rule out cervical radiculopathy and evaluate the extent of nerve damage. Rozenberg stated in the letter that sensory nerve conduction studies are important to exclude plexopathy and mononeuropathy. He further stated that the Needle EMG is an essential component of the evaluation to specifically define involved myotomes.

Insurer Must Discredit Billed Services

The court held that A no-fault insurer defending a denial of first-party benefits on the ground that the billed for services were not medically necessary must at least show that the services were inconsistent with generally accepted medical/professional practices. The opinion of the insurers expert, standing alone is insufficient to carry the insurers burden of proving that the services were not medically necessary. 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 value that define its calling.

In the instant case, neither defendant doctor or the letter of medical necessity uses the language generally accepted medical practice prefacing their statements. Dr. Cole deemed the test to be unnecessary because there was no diagnostic dilemma, the patient was improving and from the physical examination and history it could be determined that the assignor/patient had a right-sided cervical radiculopathy and a right sided lumbar radiculopathy. He opined that if the test does not affect the treatment, there is no reason to do the test. Therefore, since the test results were normal, and did not effect the course of treatment, they were unnecessary.

The Letter of Medical Necessity from Dr. Rozenberg clearly set forth the reason he had requested the test be performed. On cross-examination after having been shown the letter (done after Dr. Coles peer review), Dr. Cole agreed that the test could be used to determine the conditions set forth in the letter such as plexopathy and mononeuropathy, and the localization of any nerve injury; nonetheless the maintained that the tests were unnecessary for the reasons he previously stated.

The evidence shows contradictory positions between Dr. Cole and Dr. Rozenberg. The evidence shows that Dr. Rozenberg used the electrodiagnostic testing in light of the patients complaints to make an exact diagnosis, to locate a possible lesion and to determine the extent of the injury and to exclude possible conditions. The fact that the results were normal to this courts mind is not determinative of the usefulness of the studies. In the face of a course of treatment that has not been shown to have no medical purpose or performed towards no medical objective, this court is not prepared to second guess a treating doctor who decides that a medical test is necessary for his/her diagnosis and treatment. Defendant has failed to show that the test herein were inconsistent with generally accepted/professional practices and therefore medically unnecessary.

Accordingly, judgment is rendered in favor of plaintiff and against defendant in the sum of $2,143.90. This constitutes the decision and judgment of the court.

A.R. Medical Art P.C. a/a/o Nato Seselia v. State Farm Mutual Automobile Ins. Co., NYLJ 3/17/06 (Civil Court, Kings County) (THOMAS, j)