MK Healthcare Medical PC (“MK Healthcare”) as assignee of Marleine Sully (“Assignor”) (collectively referred as “Plaintiff”), commenced this action to recover $913.39 in assigned first-party no-fault benefits from Defendant Travelers Insurance Company (“Defendant”). Plaintiff represents that the Assignor sustained injuries during an accident that occurred on December 31, 2018, in which the Assignor was a front-seat passenger. According to the Plaintiff, Defendant improperly failed to pay for treatment rendered to the Assignor in connection with her alleged injuries in the amount of $913.39. Specifically, Plaintiff alleges that Defendant failed to pay for a “NCV w/f wave lower” (“F Wave”) and “Needle EMG lower” (“EMG”) (collectively “Procedures”) performed on April 22, 2019. The Procedures were electrodiagnostic studies of the Assignor’s lower extremities. While Plaintiff argues that Defendant is responsible for paying for the Procedures, Defendant maintains that it was under no such obligation since the Procedures were not medically necessary. On August 3, 2022, the Court held a virtual bench trial during which both Plaintiff and Defendant were represented by counsel. Pursuant to a stipulation entered into by the parties, Plaintiff and Defendant stipulated that MK Healthcare met its prima facie burden and consented to the admission of evidence, namely medical records, medical reports, expert witness disclosure, as well as portions of the Referral Guidelines for Electrodiagnostic Medicine Consultations. The parties also stipulated to the expertise of the Defendant’s expert, Ayman Hadhoud, M.D. (“Dr. Hadhoud”). Accordingly, the only matter at issue in the trial was whether Defendant’s denial of the claim on the ground of medical necessity was proper under Insurance Law §5102[a][1]. Defendant’s sole witness was Dr. Hadhoud, a licensed physician and acupuncturist, who performed a peer review of MK Healthcare’s medical records. Dr. Hadhoud testified that Procedures prescribed by MK Healthcare (Richard A. Gasalberti, M.D.) were not medically necessary. Dr. Hadhoud testified as to his review of the relevant MK Healthcare records, which revealed that MK Healthcare recommended Assignor undergo “EMG/nerve conduction studies of the lower extremities to electrophysiologically document for lumbar radiculopathy.” Dr. Hadhoud testified that based upon his review of the medical records, the EMG was not necessary since the Assignor’s neurological exam was normal and there was no clinical presentation that would necessitate an EMG. Dr. Hadhoud further testified that considering the medical records from MK Healthcare, the F Wave was also not medically necessary because such procedure was not necessary in the context of ruling out radiculopathy in the Assignor. The Court notes that during the trial, the Plaintiff did not call any witnesses. Furthermore, the only evidence that Plaintiff submitted in support of its claim that the Defendant violated Insurance Law §5102[a][1] consisted of the documentary evidence that was stipulated into evidence by the parties. Discussion Under Insurance Law §5101, “an insurer must pay first-party benefits of up to $50,000 per person to reimburse a person for covered ‘basic economic loss’ (Insurance Law 5102[a]), subject to the limitations of Insurance Law 5108.” (Govt. Employees Ins. Co. v. Avanguard Med. Group, PLLC, 127 AD3d 60, 63 [2d Dept 2015], affd, 27 NY3d 22 [2016]). “The no-fault law defines “basic economic loss” (Insurance Law §5102[a]) as ‘[a]ll necessary expenses incurred for: (i) medical, hospital…[and] surgical…services’ (id. §5102[a][1][i]) as well as loss of earnings from work.” (Hernandez v. Merchants Mut. Ins. Co., 206 AD3d 978, 979 [2d Dept 2022] (citing Insurance Law 5102[a][1]). See Govt. Employees Ins. Co. v. Avanguard Med. Group, PLLC, 127 AD3d 60, 63 [2d Dept 2015], affd, 27 NY3d 22 [2016]; Forrest Chen Acupuncture Services, P.C. v. Geico Ins. Co., 15 Misc 3d 137(A) [App Term 2007], affd, 54 AD3d 996 [2d Dept 2008]). As held by the Appellate Division, Second Department, “like the statute, the regulations promulgated thereunder expressly state that reimbursable medical expenses consist of ‘necessary expenses.’” (Hernandez v. Merchants Mut. Ins. Co., 206 AD3d 978, 979 [2d Dept 2022] (citing to Long Is. Radiology v. Allstate Ins. Co., 36 AD3d 763, 764-65 [2d Dept 2007])). The Court finds that based upon Defendant’s denial of claim forms and the findings of Dr. Hadhoud, encompassed in his testimony and report, Defendant sufficiently demonstrated that there was no medical necessity for the Procedures. (See Urban Radiology, P.C. v. Tri-State Consumer Ins. Co., 911 N.Y.S.2d 697 [App. Term, 2d Dept., 2010]). The Court found that Dr. Hadhoud’s testimony to be medically sound and credible. Dr. Hadhoud also sufficiently demonstrated that he relied upon his examination as well as his review of the Assignor’s medical records in order to reach his opinion that the Procedures were not medically necessary for the Assignor’s condition. Dr. Hadhoud’s testimony “demonstrated a factual basis and medical rationale for the determination that there was a lack of medical necessity” for the Procedures. (New Horizon Surgical Ctr., L.L.C. v. Allstate Ins. Co., 52 Misc 3d 139(A) [App Term 2016]). Based upon the credible testimony of Dr. Hadhoud and the relevant medical records submitted to the Court during trial, the Court finds that Defendant met its burden and demonstrated its entitlement to judgment in its favor. The Court further finds that Plaintiff failed to demonstrate its entitlement to judgment or otherwise rebut Defendant’s showing. As noted above, “Plaintiff called no witnesses to rebut the defendant’s showing of a lack of medical necessity.” (See New Horizon Surgical Ctr., L.L.C. v. Allstate Ins. Co., 41 N.Y.S.3d 720 [App. Term 2d Dept., 2016] (holding that the Civil Court should have dismissed the complaint after Plaintiff failed to call a witness to rebut Defendant’s showing of lack of medical necessity.”)). Furthermore, Plaintiff failed to submit any evidence, such as the testimony of the referring physician or of its own medical expert, to establish that the Procedures were medically necessary. Accordingly, it is hereby ORDERED that judgment is rendered in favor of Defendant; and it is ORDERED that the matter is dismissed with prejudice. The foregoing constitutes the Decision and Order of the Court. Dated: August 25, 2022
