New York Ctr. for Specialty Surgery v State Farm Ins. Co. (2021 NY Slip Op 50314(U))

CV-705866-17
John A. Howard-Algarin, J.

A bench trial was held before this Court on March 23, 2021, in this action to recover first party no-fault benefits related to claims made by Assignee, New York Center for Specialty Surgery (hereafter “Specialty Surgery” or “Provider”), for manipulation under anesthesia (“MUA”) procedures performed on Assignor, Jennifer Barrera (“Barrera”). Specifically, Specialty Surgery seeks payment in the amount of: $5,113.01 for an MUA performed on February 12, 2017 (as to Index No. 705866-17); $3,821.76 for an MUA performed on February 25, 2017 (as to Index No. 705867-17); and, $5,113.01 for an MUA on March 4, 2017 (as to Index No. 705884-17). Defendant, State Farm Insurance Company (“State Farm”), has declined to pay for the procedures deeming them medically unnecessary. A prior court order disposed of all other matters save for the question of payment for the aforementioned procedures.

Prior to commencement of the trial, the parties stipulated to the timeliness of both the plaintiff’s claims for payment for the procedures and the defendant’s denials thereof. The parties also stipulated into evidence: a peer review and addendum by State Farm’s sole witness herein, Daniel Spostas, D.C., (Defendant’s Exhibits A and B); the relevant treatment records (Defendant’s Exhibit C); and a series of bills and denials related to the three procedures (Defendant’s Exhibits D through I). Finally, the parties stipulated to Chiropractor Sposta’s expertise in the field of chiropractic medicine. Having satisfied its prima facie burden by way of the evidentiary stipulations, and after bilateral waivers of opening statements, the plaintiff rested. As is well settled in no-fault insurance law, State Farm bore the burden of establishing that the MUA procedures were not medically necessary (See e.g., Tremont Medical Diagnostic, P.C., v. GEICO Ins. Co., 13 Misc 3d 131(A) [App Term, 2nd & 11th Jud Dists 2006]).

State Farm’s case in chief consisted solely of Dr. Spostas’ testimony. As anticipated, Spostas testified on direct examination that the MUA procedures performed on Barrera were not medically necessary. Following the arguments set forth in his peer review of April 4, 2017, and addendum of May 3, 2017 — both documents virtually identical in substance — Spostas testified concerning the general protocols for chiropractors considering use of MUA procedures. In this [*2]regard, he deemed those promulgated by the National Academy of Manipulation Under Anesthesia Physicians (“NAMUA”) to be authoritative.

Relying primarily on the NAMUA protocols and the scope of chiropractic treatment as defined in Education Law § 6551(1), Spostas opined that Barrera was not a proper MUA candidate given the absence of evidence in the medical record reflecting: (1) a second medical opinion or interdisciplinary advice concerning use of the procedure; (2) blood tests and other screening for the patient’s tolerance of anesthesia; (3) a history of severe pain, spinal adhesions, voluntary muscle contracture, apprehensive muscle splinting or severe spasms; or (4) a failure to improve after a period of conventional chiropractic treatment. He also opined that anesthetized manipulation of Barrera’s hip and shoulder regions exceeded the scope of medical treatment contemplated within the discipline of chiropractic medicine.

Notably, Spostas proffered most of these very same pre-MUA standards in Kraft v. State Farm Mutual Automobile Ins Co., 34 Mic. 376 [Civ Ct, Queens Cty, 2011]. His purported standards were generally found to be lacking merit in that case. They gain no traction in this one. Here, as in Kraft, Dr. Spostas cited to no authority to support his contention that a second medical opinion or interdisciplinary advice was required prior to performance of a MUA procedure on a chiropractic patient. To be sure, the NAMUA protocols appear to be silent on the matter, as they are respecting his suggestion that a patient’s blood must be screened as part of NAMUA’s preoperative procedures under the protocols. Hence, what remains to be considered is whether, in view of Barrera’s medical and treatment history and the protocols, implementation of the MUA procedures was justified. Upon review of the record in evidence here, this Court finds justification for each procedure.

Among other considerations, the NAMUA protocols suggest, in relevant part, that MUA procedures are clinically justifiable when a patient has responded favorably to conservative, non- invasive chiropractic treatment but continues to experience intractable (i.e., hard to control) pain that interferes with his or her lifestyle. NAMUA protocols further recommend that manipulative procedures be utilized in a clinical setting for 2 to 6 weeks prior to recommending the procedure. Finally, as correctly noted by Spostas, the protocols also consider the MUA candidate’s history of severe pain, spinal adhesions, voluntary muscle contracture or muscle spasms, among other symptoms.

In his peer review dated April 4, 2017, Spostas noted that Barrera received her initial chiropractic examination on September 8, 2016, approximately 9 days after the underlying August 30, 2016 vehicular accident that is believed to have caused her injuries.1 She was examined, at that time, by chiropractor Arthur Schoenfeld, who recorded complaints of headache, dizziness, upper middle and lower back pain, and left sided neck pain radiating to the left shoulder. Range of motion in her cervical and thoracolumbar spine was found to have decreased with pain, and positive findings were noted in the cervical compression, heel walk, SLR (straight leg raise) and Kemp’s tests. On November 2, 2016, approximately 8 weeks after the vehicular incident and 2 weeks beyond the 2 to 6 week preliminary chiropractic period contemplated by the NAMUA protocols, Schoenfeld wrote a Letter of Medical Necessity to State Farm indicating that, while Barrera had demonstrated some responses to physiotherapy, she was still experiencing pain and difficulty performing many daily activities. The letter was used to justify Schoenfeld’s prescription of various medical supplies including a cervical pillow and collar, a car seat support, and a bed board, among other items. The record also reflects that, up to that date, she participated in regular chiropractic adjustments and continued to receive such treatment until just before January 25, 2017, when she first presented at Pro Align Chiropractic, P.C. (“Pro Align”), for evaluation as a candidate for MUA.

At her January 25, 2017 evaluation at Pro Align, Barrera was diagnosed with various pathologies including: displacement of both cervical and lumbar intervertebral discs; cervical, [*3]thoracic, lumbar and sacroiliac segmental dysfunction; cervicobrachial syndrome; cervical radiculitis; and other symptoms related to her shoulder and hip joints. The evaluation also depicted her as experiencing a significant loss of range of motion in all areas, and having reached a “plateau” in her recovery efforts considerably below her maximum medical improvement. Her prognosis was guarded. From this, her first MUA was scheduled for February 12, 2017. The target treatment areas included her cervical, thoracic, lumbar, pelvic, hip and shoulder regions.^[FN1]

The first MUA procedure involved manipulation of all parts of her spine and its supporting musculature, and included her shoulders and left hip. Post procedure, she was found to have increased range of motion without significant muscle guarding. In his report, Dipti Patel, D.C. (“Patel”), the chiropractor who performed the MUA, noted that Barrera’s fibro-adhesive conditions were significantly impacted increasing the potential for appropriate neuromuscular re-education and healing. She was instructed to follow up at the surgery center to determine if a second MUA procedure was indicated. In the interim, passive manipulation to the treated areas was prescribed to prevent the reformation of muscular adhesions.

This Court finds that Barrera’s treatment record leading up to January 25, 2017 satisfies the NAMUA considerations justifying the procedure. By the initial MUA date, Barrera had participated in frequent conservative chiropractic sessions and, while experiencing some improvement, was still hampered by pain in her activities daily living. This was true beyond the initial 2 to 6 week conservative manipulation period contemplated by the NAMUA protocols, and the numerous positive findings during her pre-MUA evaluation at Pro Align confirm as much. Furthermore, in keeping with the protocols, Dr. Patel prescribed post-MUA series therapy to prevent the reformation of muscular adhesions, suggesting that adhesions — another justifying factor under the NAMUA protocols — were a complicating factor prior to the procedure. Although further analysis of the treatment record would more robustly justify the initial MUA procedure, it is hardly necessary. In this Court’s view, the procedure was justified. This leaves the question of whether Specialty Surgery’s MUA exceeded the scope of chiropractic practice by including, and billing for, the anesthetized manipulation of Barrera’s left hip and shoulders during the initial MUA. It is this Court’s conclusion that the issue need not be decided here.

New York Education Law § 6551(1) defines the scope of chiropractic practice as follows:

The practice of the profession of chiropractic is defined as detecting and correcting by manual or mechanical means structural imbalance, distortion, or subluxations in the human body for the purpose of removing nerve interference and the effects thereof, where such interference is the result of or related to distortion, misalignment or subluxation of or in the vertebral column.

NY Educ. Law § 6551(1). From this it would appear that the general purpose of chiropractic practice is to correct structural or biomechanical problems within the human body by providing manual or mechanical treatment to the spine. Pertinent here, however, given Specialty Surgery’s failure to call any witnesses, the court is without a medical basis upon which to determine whether the anesthetized manipulation of Barrera’s shoulders and left hip could somehow could have been justifiably brought within the scope of providing treatment to her spine for the purpose of correcting some biomechanical malfunction. Notwithstanding this hurdle, there is ample basis in the record upon which to find that Specialty Surgery should be compensated for the portion of the MUA applied directly to her spine.

An examination of the February 12, 2017 bill submitted by Specialty Surgery to State Farm for the first MUA shows the carrier as being billed $25,000 for the manipulation of Barrera’s spine (Code No. 22505), with additional amounts totaling $44,060 billed for all MUA [*4]treatment provided that day. Given that Specialty Surgery has demanded a total of $5,113.01 for the February 12, 2017 MUA (Index No. 705866-17), upon the medical record in evidence, this court finds ample basis for such compensation for the manipulation of the patient’s cervical, thoracic and lumbosacral spinal regions. Accordingly, justification of the February 25, 2017 (Index No. 705867- 17), and March 4, 2017 (Index No. 705884-17), remains. This court finds that those procedures were also medically justified.

The NAMUA protocols set forth general patient recovery benchmarks to consider prior to performing serial MUA procedures. Generally, the protocols contemplate that a second (or serial) MUA procedure is usually unnecessary when a patient regains and retains 80% or more of normal biomechanical function as a result of the first procedure and post-MUA therapy. However, if the patient regains only 50-70% or less of normal biomechanical function as a result of the first procedure and post-MUA follow up therapy, then a second (or serial) MUA procedure is recommended. While the NAMUA scheme appears to leave biomechanical recovery in the 70- 80% range out of consideration for additional MUA procedures, the protocols ultimately recommend serial MUAs until the patient achieves the 80% or greater biomechanical recovery threshold. With that in view, we turn to the second and third MUA procedures.

On February 25, 2017, the day of Barrera’s second MUA procedure, Barrera presented at Pro Align for a pre-MUA evaluation and was found to have experienced approximately 51%-79% improvement from the first procedure. The evaluation report also noted that she continued to experience chronic pain, adhesions and myofascial pain syndrome. This scenario repeated itself again when she presented at Pro Align for the third and final MUA procedure on March 4, 2017. Hence, according to the NAMUA protocols, as of February 25, 2017, and again on March 4, 2017, Barrera’s recovery fell within the range of justification for the second and third MUA procedures.

As with the February 12, 2017 bill from Specialty Surgery to State Farm, the February 25, 2017, and March 4, 2017 bills each charged $25,000 for the manipulation of Barrera’s spine (Code Nos. 225059 and 22505), with bills totaling $44,060 and $48,030, respectively, for all MUA related services provided on those dates. Given that Specialty Surgery has demanded only $3,821.76 (for February 25, 2017) and $5,113.01 (for March 4, 2017) for the MUA services provided, this Court finds that compensation is warranted in each case.

Accordingly, the clerk is directed to enter judgment in favor of the plaintiff, New York Center for Specialty Surgery, in each of the following matters herein: CV-70566-17; CV-705867- 17; and, CV-705884-17.

This constitutes the Decision and Order of the Court.

Dated: April 14, 2021
Hon. John A. Howard-Algarin, J.C.C.

Footnotes

Footnote 1:All references to the record would have included citations to specific pages therein had counsel complied with the court’s trial part rules and submitted documentary evidence with Bates stamped identifiers.