Plaintiff commenced this action to recover the sum of nine hundred fifty-eight dollars and thirty-two cents ($958.32) for psychiatric evaluation and testing performed on assignee on September 12, 2003, relating to injuries assignee allegedly sustained on August 30, 2003.

Prior to the commencement of the trial, the parties stipulated ("Stipulation") to Plaintiff's prima facie case and Defendant's timely issuance of a proper denial of claim based upon a defense of lack of medical necessity. The Stipulation further provided that the only issue for this Court to decide was whether the services Plaintiff provided were medically necessary. The Stipulation was entered into evidence as Court Exhibit 1.

At trial, Defendant bears the burden of proof for its defense of lack of medical necessity (see A.R. Medical Art, P.C. v. State Farm Mutual Automobile Insurance Company, 11 Misc 3d 1057(A), 815 NYS2d 493, 2006 NY Slip Op 50260(U) [Civ. Ct. Kings Co. 2006]; A.B. Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance Company, 7 Misc 3d 1018(A), 801 NYS2d 299, 2005 NY Slip Op 50662(U) [Civ. Ct. Kings Co. 2005]).

A no-fault insurer defending a denial of first-party benefits on the ground that the billed for services were not medically necessary must show that the services provided were inconsistent with generally accepted medical/professional standards. The opinion of the insurer's expert, standing alone, is insufficient to carry the insurer's burden of proof that the services were not medically necessary (see CityWide Social Work & Psychological Services v. Travelers Indem. Co., 3 Misc 3d 608, 777 NYS2d 241 [Civ. [*2]Court Kings County 2004]; Ultimate Medical Supplies v. Lancer Insurance Co., 7 Misc 3d 1002(A), 801 NYS2d 243, 2004 NY Slip Op 51860(U) [Civil County Kings County 2004]; Expo Medical Supplies, Inc. v. Clarendon Insurance Company, 12 Misc 3d 1154(A), 819 NYS2d 209, 2006 NY Slip Op 50892(U), 2006 WL 1341418). At trial, Defendant bears the burden of proof for its claim of lack of medical necessity (see Expo Medical Supplies, Inc. v. Clarendon Insurance Company, supra; A.M. Medical Services v. Deerbrook Insurance Co., Slip Copy, 18 Misc 3d 1139A, 2008 NY Misc. LEXIS 749, 2008 WL 518022 (NY City Civ. Ct.), 2008 NY Slip Op. 50368(U)).

In order for Defendant to prevail, Defendant must establish a factual basis and medical rationale for its claim of lack of medical necessity (see Nir v. Allstate Insurance Co., 7 Misc 3d 544, 796 NYS2d 857 [Civ. Ct. Kings Co. 2005]). Defendants' medical expert, Dr. Samuel Rock, testified that he reviewed the medical records and reports of the claimant and that he had sufficient information to render an opinion as to whether the services rendered were medically necessary. Dr. Rock testified on direct examination that he reviewed the medical records he received from Dr. Braun as well as other medical reports and results of the Beck inventory tests.

Dr. Rock also testified that the general accepted medical/professional standard for conducting the initial interview is six (6) weeks post-accident and to conduct the initial interview any earlier could result in a false positive, as most individuals experience some type of psychological stress after an accident, but the initial stress dissipates several weeks thereafter.

In the instant case, Dr. Braun conducted the initial interview on September 12, 2003, thirteen (13) days post accident, which according to Dr. Rock was improper and against generally accepted medical/professional standards.

In addition to the foregoing, Dr. Rock testified that had the initial interview been properly conducted, a determination could have been made that claimant was not seriously psychologically disturbed and therefore no additional testimony would be necessary.

According to Dr. Rock, the medical reports he reviewed does not indicate whether the claimant was ever treated, or whether Dr. Braun ever examined claimant or just relied upon the paperwork generated from claimant's self-administered Beck inventory tests.

In addition to the foregoing, Dr. Rock testified that the results of Dr. Braun's tests indicated claimant had the mildest form of anxiety, and in Dr. Rock's opinion, that diagnosis could have been determined during a proper forty-five (45) minute interview rendering subsequent testings unnecessary.

On cross-examination, Dr. Rock admitted, he did not review the accident report, hospital records or Dr. Gelphan's report in concluding the tests performed on claimant [*3]were not medically necessary. However, on re-direct examination, Dr. Rock testified that even if he had reviewed those reports they would not have effected his opinion regarding the lack of medical necessity.

Once Defendant insurer presents sufficient evidence to establish a defense based on lack of medical necessity, the burden shifts to Plaintiff to present its own evidence of medical necessity (see Prince, Richardson on Evidence Section 3-104, Section 3-202 [Farrell 11th ed]; West Tremont Medical Diagnostic, P.C. v. Geico Ins. Co., 13 Misc 3d 131(A), 824 NYS2d 759, 2006 NY Slip Op 51871(U) [2006]). In the case at bar, Plaintiff did not call any witnesses to rebut Dr. Rock's testimony but relied upon its cross-examination of Dr. Rock to defend its claim of medically necessity. The Court finds that Plaintiff has failed to refute Defendant's expert witness testimony that the services provided deviated from the generally accepted medical professional standards and has failed to produce any rebuttal evidence to prove medical necessity for the services rendered.

Accordingly, judgment is hereby rendered for Defendant.

This constitutes the Decision and Order of the Court.

SO ORDERED.

DISTRICT COURT JUDGE

Dated: July 1, 2008

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