The Plaintiff commenced this action to recover $1,723.14 for electro-diagnostic tests performed on December 26, 2003 related to injuries allegedly sustained by its assignor in a motor vehicle accident of July 17, 2003.

Before the commencement of the trial herein the parties stipulated to the Plaintiff's prima facia case and to the Defendant's timely issuance of a proper denial based upon a defense of lack of medical necessity. The parties further stipulated that the only issue to be tried was that of the medical necessity, or lack thereof, for the services provided by the Plaintiff.

By stipulation, the parties submitted into evidence, and the court accepted as Plaintiff's Exhibit 1, three (3) Verification of Treatment forms (NF-3) for the services in question; as Defendant's Exhibit A, the Defendant's Denial of Claim Form (NF-10) dated February 13, 2004; as Defendant's Exhibit B, the Peer Review report of Dr. Ravi Tikoo dated February 9, 2004; and, as Defendant's Exhibit C, an assortment of records and reports, including an Assignment of Benefits Form from the Plaintiff's Assignor to the Plaintiff, a report of Dr. James M. Ligouri dated November 19, 2003, office records of the Plaintiff, an MRI report of the cervical spine dated November 19, 2003, an MRI report of the lumbar spine dated November 24, 2003, the results of an SSEP study of the upper extremities performed on December 26, 2003, the results of an SSEP study of the lower extremities, the results of a lower EMG performed on December 26, 2003, the results of a lower nerve conduction and lower sensory nerve conduction performed on December 26, 2003, the results of an upper EMG performed on October 13, 2004, the results of an upper nerve conduction performed on November 19, 2004, the results of an upper EMG performed on November 19, 2003, the results of an upper nerve motor nerve conduction performed on October 13, 2004, the results of an upper sensory nerve conduction performed on October 13, 2004, the reports of Dr. Elie J. Sarkis dated August 11, 2003, August 25, 2003 and November 3, 2003, the report of Dr. Alan Mechanic dated November 25, 2003, and the record of Franklin Hospital Medical Center dated July 18, 2003. [*2]

It has repeatedly been stated by the nisi prius courts that, at the time of trial, the insurer bears the burden of production and the burden of persuasion with respect to the lack of medical necessity of the treatment or testing for which payment is sought. Nir v. Allstate Insurance Company, 7 Misc 3d 544, 796 NYS2d 857 (Civ. Ct. Kings Co. 2005); Bajaj v. Progressive Insurance Company, 14 Misc 3d 1202(A), 2006 WL 3627946 (Civ. Ct. Queens Co. 2006); Elm Medical, P.C. v. American Home Assurance Company, 2003 NY Slip Op. 51357(U) (Civ. Ct. Kings Co. 2003); Expo Medical Supplies, Inc. v. Clarendon Insurance Company, 12 Misc 3d 1154(A), 819 NYS2d 209 (Civ. Ct. Kings Co. 2006); City Wide Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Company, 3 Misc 3d 608, 77 NYS2d 241 (Civ. Ct. Kings Co. 2004); Fifth Avenue Pain Control Center v. Allstate Insurance Company, 196 Misc 2d 801, 766 NYS2d 748 (Civ. Ct. Queens Co. 2003); A.R. Medical Art, P.C. v. State Farm Mutual Automobile Insurance Company, 11 Misc 3d 1057(A), 815 NYS2d 493 (Civ. Ct. Kings Co. 2006); Hellander, M.D., P.C. v. State Farm Insurance Company, 6 Misc 3d 579, 785 NYS2d 896 (Civ. Ct. Richmond Co. 2004); A.B. Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance Company, 7 Misc 3d 1018(A), 801 NYS2d 229 (Civ. Ct. Kings Co. 2005) The court is also aware, however, of the holding in Shtarkman, Neurologist, P.C. v. Allstate Insurance Company, 2002 WL 32001277; 2002 NY Slip Op. 50568(U) (App. Term 9th and 10th Jud. Dists.) to the effect that, "The burden of establishing whether the EMGs and nerve conduction studies performed by the plaintiff on the injured party were medically necessary is on the plaintiff since it is part of the plaintiff's case." But see: Choicenet Chiropractic P.C. v. Allstate Insurance Company, 2003 NY Slip Op. 50672(U) (App. Term 2nd and 11th Jud. Dists. 2003) [on summary judgment motions burden on issue of medical necessity belongs to the defendant]; A.B. Medical Services, PLLC v. GEICO Insurance, 2 Misc 3d 26, 773 N.Y.s.2d 773 (2nd and 11th Jud. Dists. 2003) [Plaintiff not obligated to prove medical necessity in support of motion for summary judgment]; Amaze Medical Supply Inc. v. Eagle Insurance Company, 2 Misc 3d 128(A), 784 NYS2d 918 (2nd and 11th Jud. Dists. 2003) [defendant bears burden of proof on issue of medical necessity on summary judgment motion]

This court, however, need not resolve these apparently conflicting holdings at this time. As will be discussed in detail below, the order in which the parties agreed to call their witnesses notwithstanding, the Plaintiff has established the medical necessity of the tests performed herein, whereas the Defendant has failed to competently demonstrate their lack of medical necessity.

Dr. Ravi Tikoo testified on behalf of the Defendant that in his opinion, within a reasonable degree of medical certainty, the electro-diagnostic tests conducted by the Plaintiff herein were not medically necessary. Dr. Tikoo based his opinion upon a review of the records and reports admitted into evidence as Defendant's Exhibit C.

It was Dr. Tikoo's opinion that the tests herein were not necessary because, such tests are usually prescribed where there is evidence of disease or injury and the results of the test would change the patient's clinical management, neither of which, according to Dr. Tikoo, was present in this case. Dr. Tikoo was of the opinion that, the patient's many subjective complaints notwithstanding, insufficient objective evidence of neurologic abnormalities was present to warrant the tests performed by the Plaintiff. Dr. Tikoo points to the report of Dr. Alan Mechanic dated November 25, 2003 as indicating that, despite complaints of pain in the neck, left shoulder and left arm, motor, sensory and reflex examinations were normal, and surgery was not indicated. [*3]Dr. Tikoo further observed that Dr. Liguori's findings, on November 19, 2003, which revealed 3/5 weakness in the right tibialis anterior, diminished reflexes in the left bicep and brachioradialis reflexes and sensory loss in the C6/7 distribution of the left arm, to be contradicted by Dr. Mechanic's report and Dr. Sarkis' report of November 3, 2003. Additionally, Dr. Tikoo believed that the MRI studies which had already been performed, visualizing the nerve roots, rendered the EMG and NCV studies unnecessary. Dr. Tikoo concluded that electro-diagnostic studies would have been advised if the neurologic findings would have warranted surgery.

On cross-examination, Dr. Tikoo acknowledged that he never examined the patient. He further testified that after reviewing Dr. Liguori's report of November 19, 2003 he felt follow-up was needed before any testing was done, and indicated that if follow-up had positive findings then, maybe, an EMG and NCV would have been necessary. Dr. Tikoo further acknowledged that MRI's, and EMG's/NCV's show different things and that, despite his testimony on direct examination, he has performed both types of tests on the same person in his private practice.

Dr. James Liguori testified on behalf of the Plaintiff that the electro-diagnostic tests performed herein were medically necessary. He testified that he first saw the patient, in neurologic consultation, on November 19, 2003. At that time, the patient complained of neck, left shoulder, mid-back, lower back and bilateral leg pain, and numbness and tingling of the left arm and hand. According to Dr. Liguori, following a full neurologic examination, his significant physical findings were of 3/5 weakness of the tibialis anterior on the right, cervical, thoracic and lumbar muscle spasm, sensory loss in the C6/7 distribution of the left arm and positive straight leg raising on the right. His diagnosis, at that time, included cervical and lumbar radiculopathy and left shoulder trauma. His report of November 19, 2003 indicates that his plan included "EMG/NCV testing of the upper extremities to rule out radicular dysfunction versus brachial plexopathy with the appropriate therapies recommended at that time."

Dr. Liguori further testified that he performed a follow-up examination on December 26, 2003, at which time, he reviewed the patient's MRI reports which showed three (3) disc herniations of the cervical spine, with impingement. The court notes that these reports also show muscle spasm of the cervical spine and bulging discs of the lumbar spine. At that examination, Dr. Liguori claims to have found that the patient had slight improvement in the lower extremities, although her straight leg raising deficit was now bilateral, and was of the impression that the patient was suffering from cervical radiculopathy with cord involvement. According to Dr. Liguori, if there was cord compression surgery may have been necessary.

Dr. Liguori then conducted the SSEP and EMG/NCV tests here in question, to rule out spinal cord dysfunction, to confirm his diagnosis, to determine the extent of the patient's condition and to rule out other causes of her symptoms. Dr. Liguori testified that the MRI's alone were not sufficient to serve these purposes, as they are structural tests, as opposed to the electro-diagnostic studies which show the physiology of the nerves in question. The results of these tests were normal. Dr. Liguori testified that these results allowed him to rule out surgery and injections and to continue physical therapy for the patient.

On cross-examination Dr. Liguori testified that the patient was once a candidate for surgery, but that no surgery was ultimately necessary. He further testified that the MRI's alone [*4]could not determine if surgery was necessary and that the electro-diagnostic tests assist in determining any changes to the patient's treatment.

A review of the other medical reports submitted as part of Defendant's Exhibit C demonstrates that from the date of the accident, up to and including the date the electro-diagnostic tests herein were performed, the patient complained of neck and back problems. Examinations conducted at Franklin Hospital Medical Center, on the date of the accident, and periodically thereafter by Dr. Elie J. Sarkis, revealed a number of objective findings, including muscle spasms, positive straight leg raising, limitation of motion of the neck and left shoulder.

This court, adopting the standard set forth in Fifth Avenue Pain Control Center v. Allstate Insurance Company, supra ., holds:

for treatment or services to be medically necessary, it must be reasonably determined by the health care professional in consultation with the patient, that the treatment or services are consistent with the patient's condition, circumstances and best interest of the patient with regard to the type of treatment or services rendered, the amount of treatment or services rendered, and the duration of the treatment or services rendered. To find treatment or services are not medically necessary, it must be reasonably shown by medical evidence, in consideration of the patient's condition, circumstances, and best interest of the patient, that the treatment or services would be ineffective or that the insurer's preferred health care treatment or lack of treatment would lead to an equally good outcome.

See also: Hellander, M.D., P.C. v. State Farm Insurance Company, supra .

To meet its burden, at a minimum, the Defendant must establish a factual basis and medical rationale for its asserted lack of medical necessity, Nir v. Allstate Insurance Company, supra ., which is supported by evidence of the generally accepted medical/professional practices, A.B. Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance Company, supra ., and that the services rendered were inconsistent with those accepted practices. A.R. Medical Art, P.C. v. State Farm Mutual Automobile Insurance Company, 11 Misc 3d 1057(A), 815 NYS2d 493 (Civ. Ct. Kings Co. 2006). Generally accepted practice has been recognized to be "that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling." City Wide Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Company, supra .; A.B. Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance Company, supra .; A.R. Medical Art, P.C. v. State Farm Mutual Automobile Insurance Company, supra . The opinion of the Defendant's expert, standing alone, is insufficient to demonstrate the lack of medical necessity. City Wide Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Company, supra .; Ultimate Medical Supplies v. Lancer Insurance Company, 7 Misc 3d 1002(A), 801 NYS2d 243 (Civ. Ct. Kings Co. 2004); Expo Medical Supplies, Inc. v. Clarendon Insurance Company, supra .

Neither Dr. Tikoo's Peer Review report nor his testimony is supported by any "proof that [his] proposed course of treatment was the established standard of medical practice or procedure as related to the injuries complained of by [the Plaintiff's assignor]." Delta Medical Supplies, Inc. v. NY Central Mutual Insurance Co.,14 Misc 3d 1231(A), 2007 WL 489125 (Civ. Ct. Kings Co. 2007). Moreover, given the conflicting testimony offered by Dr. Liguori, who actually examined the patient, as well as the medical records and reports offered into evidence, which provide [*5]objective medical findings and rationale for the tests performed, "this Court is not prepared to second guess a treating doctor who decides that a medical test is necessary for his/her diagnosis and treatment (citations omitted)." A.R. Medical Art, P.C. v. State Farm Mutual Automobile Insurance Company, 11 Misc 3d 1057(A), 815 NYS2d 493 (Civ. Ct. Kings Co. 2006); Alliance Medical Office, P.C. v. Allstate Insurance Company, 196 Misc 2d 268, 764 NYS2d 341 (Civ. Ct. Kings Co. 2003); City Wide Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Company, supra .

Accordingly, judgment is rendered in favor of the Plaintiff and against the Defendant in the sum of $1,723.14, plus interest from the date of commencement of this action, 11 N.Y.C.R.R. § 65-3.9; Elmont Open MRI & Diagnostic Radiology v. Country-Wide Insurance Co., __ Misc 3d __, __ NYS2d __, 2007 WL 570539, along with statutory attorneys' fees, costs and disbursements of this action.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

March 14, 2007

___________________________

ANDREW M. ENGEL

J.D.C.