CHIROPRACTORS PERFORMING MUA

CHIROPRACTORS PERFORMING MUA

New Horizon Surgical Center, L.L.C., v. Allstate Insurance Company, Slip Copy, 2016 WL 4021130 (Table), 2016 N.Y. Slip Op. 51124(U)

New Jersey facility sued to recover a facility fee for MUA.  The procedure performed at plaintiff’s facility.  Denial was timely and based on lack of medical necessity due to an independent medical examination (IME). The sole witness to testify at trial was a licensed chiropractor, who had performed the IME. He testified that he had concluded, based on the IME, that the assignor’s injuries had resolved and that there was therefore a lack of medical necessity for the MUA procedure.  The trial court found that the testimony sufficiently demonstrated a lack of medical necessity.  Civil Court determined that although the action should be dismissed, it ultimately found for plaintiff holding that chiropractors cannot perform MUA in New York because it is considered a surgical procedure and only physicians may perform. Therefore opinion of the chiropractor witness is not sufficient to establish lack of medical/chiropractic necessity of MUA or surgical center charge.

The Appellate Term reversed, saying:

Dr. Portnoy’s testimony, which the court found credible, demonstrated a factual basis and medical rationale for the determination that there was a lack of medical necessity for any further chiropractic treatment, including the MUA procedure at issue (see Alev Med. Supply, Inc. v *2 Government Employees Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]) and, by extension, the facility fee which was sought in the claim in question. Thus, the burden shifted to plaintiff to present evidence as to why that additional treatment was needed either because plaintiff’s assignor’s condition had changed after the IME or because Dr. Portnoy’s opinion following the IME was erroneous. As plaintiff called no witnesses to rebut defendant’s showing of a lack of medical necessity (see West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), the Civil Court should have dismissed the complaint.  In view of the foregoing, we need not decide whether the Civil Court erred in finding that chiropractors cannot perform MUA procedures in New York.

The Court skirted the really important issue.

In a related case, New Horizon Surgical Center, L.L.C., v. Allstate Insurance Company,  Slip Copy, 2016 WL 4021138 (Table), 2016 N.Y. Slip Op. 51125(U), the Court shed more light on its rationale:

The issue in this case is not whether chiropractors are permitted to perform MUA, but *2 rather whether defendant, through the testimony of its expert witness, satisfied its burden of establishing a lack of medical necessity and, if it did so, whether plaintiff proved, by a preponderance of the evidence, that the services rendered were medically necessary (see Park Slope Med. & Surgical Supply v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Plaintiff stipulated to Dr. Priolo’s expertise, and there is no indication in the record that Dr. Priolo was not competent to assert his opinion as to the lack of medical necessity of the procedure performed (see Channel Chiropractic, P.C. v Country-Wide Ins. Co., 38 AD3d 294 [2007]; see also Patil v Countrywide Ins. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50306[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006]) and, by extension, the facility fee which was sought in the claim in question. Dr. Priolo’s testimony, which the court found credible, demonstrated a factual basis and medical rationale for his determination that there was no medical necessity for the services at issue (see Alev Med. Supply, Inc. v Government Employees Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As plaintiff called no witnesses to rebut Dr. Priolo’s testimony (see West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), we disagree with the Civil Court’s ultimate determination in favor of plaintiff and find that the Civil Court should have dismissed the complaint.  In view of the foregoing, we need not decide whether the Civil Court erred in finding that chiropractors cannot perform MUA procedures in New York.

Still skirting the issue.

 

 

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