Index No. CV-718889-16/KI. Civil Court of the City of New York, Kings County. Decided August 1, 2022.
- For Plaintiff: Michael Nathan, Esq., Lewin & Baglio LLP.
- For Defendant: Adam Waknine, Esq., Peter C. Merani, P.C.
NICHOLAS MOYNE, J.
CASE SUMMARY
After trial held on July 13, 2022, the Court finds in favor of the Plaintiff. James J. Kim, a licensed acupuncturist, commenced this no-fault action against Allstate Insurance Company following the denial of claims for acupuncture services provided from February 9, 2015, through December 7, 2015.
The assignor, Rick Greengus, was injured in an accident on December 7, 2013. Allstate denied the claims based on an Independent Medical Examination (IME) report by Dr. Thomas McLaughlin conducted on March 13, 2014, citing a “lack of medical necessity.”
TRIAL TESTIMONY AND EVIDENCE
Dr. Thomas McLaughlin (Defense Expert): Dr. McLaughlin examined the assignor once on March 13, 2014. In his report, he described the patient’s complaints of left shoulder and neck pain as “non-descript.” He concluded that no further acupuncture care was necessary as the examination revealed no objective findings of dysfunction. He also discussed Traditional Chinese Medicine (TCM) principles, noting the patient’s tongue and pulse were “unremarkable” regarding Qi or blood stagnation.
Dr. James J. Kim (Plaintiff): Dr. Kim rebutted these findings, opining that continued treatment was medically necessary due to persistent pain. He testified to performing thorough evaluations before each session and referenced the same TCM diagnostic criteria (blood stagnation and tongue diagnosis) mentioned by the defense expert.
LEGAL ANALYSIS: THE “IME CUT-OFF”
The Court addressed the common industry term “IME cut-off”, finding it to be imprecise and potentially misleading.
- Snapshot vs. Permanent Fixture: The Court clarified that an IME is merely a “snapshot” of a medical condition at a specific moment. It is an expert’s prediction, not a permanent determination that freezes a patient’s condition in time.
- Burden of Proof: An IME does not conclusively prove that future treatment is unnecessary. Instead, it shifts the burden to the plaintiff-provider to demonstrate by a preponderance of credible evidence that the treatment was, in fact, medically necessary.
COURT’S DETERMINATION
The Court found Dr. Kim’s testimony more credible than Dr. McLaughlin’s for the following reasons:
- Continuous Evaluation: Dr. Kim conducted evaluations before every treatment session, whereas Dr. McLaughlin only saw the patient once.
- Clinical Position: As the treating provider, Dr. Kim possessed more information and was in a better position to assess the patient’s ongoing needs.
- Adherence to Standards: Dr. Kim’s findings correlated with the same TCM standards referenced in the defense’s own report.
The Court noted that if Allstate wished to further limit treatment after the initial IME, they had options such as requesting a supplemental IME, conducting an EUO of the provider, or performing a peer review of post-IME records. By relying solely on a single pre-treatment IME, they failed to overcome the plaintiff’s credible rebuttal.
CONCLUSION
Judgment is rendered for the Plaintiff in the amount of $2,018.77 (as stipulated under the fee schedule), plus statutory interest and attorney fees.
The clerk may enter judgment.