Tuesday, March 3, 2009

How to defeat a Lack of medical necessity motion based upon a peer review

I encounter on many levels summary judgment motions predicated upon the defense that a service lacks medical necessity in accordance with a peer review which finds that a given service is medically unreasonable. Invariably, the motion only annexed the peer review.

The opponent to the motion now has to scramble to find the documents the peer reviewer examined, and then the opponent needs to retain an expert to review these records in order to conclude that the services were medically necessary.

I think we missed a step here. Why was the movant able to get away with attaching a FILE based review without annexing the file? Are we to throw caution to the wind and blindly trust the peer doctor's interpretation of the plaintiff's records? Indeed, the way plaintiffs win trials is through poking holes in the peer doctor's medical rationale viz a vi the plaintiff's medical records. Conversely, a defendant faced with a treating doctor will do the same thing to beat him or her.

Perhaps the better question is why, mister plaintiff did you not object to the defendant's putting the cart before the horse through his making a summary judgment motion without any documentaty evidence to support it?

Maybe the question that really needs to be answered is why we allow ourselves to accept shoddy practices and mediocrity under the guise of "volume"?

The Appellate Division, in 2006 believed that what has now been the norm in no-fault medical necessity motion practice was unsatisfactory in an analagous scenario and found that the movant who pulled the above stunt was unable to prima facie demonstrate his defense to the action.

In Cariddi v. Hassan 45 AD3d 516 (2d Dept. 2006), the Appellate Division held the following:

While Dr. Katz provided objective medical evidence in support of his diagnoses with respect to the plaintiff's complaints regarding **427 her ankle and lumbosacral spine, his only basis for concluding that the plaintiff's complaints regarding her hip were "unrelated" to the subject accident was that "doctors' notes reviewed do not indicate any problem to the left hip following this incident of 09/17/04 [and a]n MRI of the left hip and pelvis was not performed until 01/03/06 which is more than one year after the accident." However, Dr. Katz did not attach any of the prior medical records to his report, and the defendants otherwise failed to submit any such records in support of their motion, as they were certainly entitled to do (see Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 47 n. 1, 789 N.Y.S.2d 281; Pagano v. Kingsbury, 182 A.D.2d 268, 271, 587 N.Y.S.2d 692). Therefore, Dr. Katz's report, standing alone, failed to establish, prima facie, that the plaintiff's alleged hip injury was unrelated to the subject accident

Of course, one caveat needs to be stressed. The failure to object to a moving party's reliance on materials not before the court is waived if not properly objected to. Unobjected to hearsay is competent evidence. Use it or lose it. Oh, and this does not apply to IME based motions.

2 comments:

Anonymous said...

I beat Peer SJ motions on that very basis all the time.

I've even gotten decisions that say the failure of the Defendant to annex the article the peer review doctor cites to in articulating his medical standard (if indeed the doctor bothered to cite to one) means the motion must be denied.

NoFaultDefender said...

Hey there. I never imagined my little blog being interactive. Heaven knows if you will even read my retort. Based on your post, I am going to imagine that you practice somewhere in Nassau or Suffolk. The Nassau judges are just brutal on the medical necessity msj's. The Suffolk ones - well it is hit or miss.

I try not to offer my personal heartfelt opinions on here. It may very well go against the defense mantra. People also are adverse to the truth, on either side of the aisle. Yet, I cannot help but just shake my head at some of the things I see.

In the world of medical necessity sj practice, this how I think the papers should go down.

I would suspect that in the perfect world, absent a definition of medical necessity, there should either be a spelled out definition of medical necessity in the report or a rationale for why something lacks medical necessity, AND explained reasons why the service does not fit within the said rationale. With a factual basis and valid rationale, the burden of production should shift to the plaintiff.

The plaintiff, in raising a triable issue of fact, should then either: (a) Dispute the medical rationale with a theory of the doctor's own;(b) Accept the validity of the peer doctor as true and explain why the service or supply in the matter at bar fits within the medical rationale; or (c) Provide additional evidence that not only raises an issue of fact but knocks out the veracity and validity of a defendant's peer review.

I hope some court sees the light one day. Heaven knows, I don't want to be the guinea pig who ventures down this road.