The claim for payment of the EMG/NCV studies of the patient’s upper extremities conducted on July 18, 2008 was denied timely based on the peer review by Dr. Joseph C. Cole dated September 21, 2008. Dr. Cole reviewed some medical records and opined that the testing was not medically necessary. He stated that the “...documentation did not substantiate how the results of EMG/NCV testing of the upper extremities would have been incorporated into the claimant’s overall medical care...The documentation therefore does not reflect how the results of EMG/NCV testing would have been correlated with the history and physical examination findings...” He cited the findings of an article published in the American Association of Electrodiagnostic Medicine; minimonograph #32 Muscle Nerve 1998 December which stated that electrodiagnostic testing could not be used to exclude a radiculopathy. He concluded that the testing was excessive and not medically necessary.
Applicant’s counsel argued that Dr. Cole’s peer review is not credible. I take judicial notice that in the case of Cambridge Medical, P.C. v. GEICO, 18 Misc.3d 1144A, 859 NYS2d 893, Dr. Cole testified under oath that the mimimonograph #32 was superceeded by the AANEM one year later. Dr. Cole admitted that the findings he cited were not valid since they were contradicted by different findings a year later. The Court noted: “In fact, an AAEM publication issued one year after the AAEM minimonograph #32 cited by Dr. Cole is dramatically opposed to Cole’s position that the electrodiagnostic test is not medically necessary since it stated that a ‘needle EMG is widely regarded as the technique of choice in the diagnostic evaluation of cervical radiculopathy.’”
The denial of payment of the EMG/NCV studies conducted on the patient’s lower extremities was denied timely based on the peer review by Dr. Mitchell Ehrlich dated August 27, 2008. Dr. Ehrlich reviewed some medical records and opined that the testing was not medically necessary. He stated that a “...sound medical rationale for performing this testing was not presented in the records...” He added that the patient did not exhibit any signs or symptoms of neuromuscular diseases to differentiate with the testing and the necessity to provide conservative management did not depend on the testing since it was already being performed. He also cited the same article that Dr. Cole cited in his peer review in order to support the proposition that “...electrodiagnostic testing is actually technically limited in correlating segmental neuropathic findings with the exact spinal anatomy...” He concluded that medical justification was not established to warrant the conduction of the EMG/NCV studies of the patient’s lower extremities. I find based on evidence that the Respondent failed to show that the EMG/NCV testing of the patient’s upper and lower extremities conducted on December 16, 2008 were not medically necessary. The denials were based on peer reviews by Dr. Cole and Dr. Ehrlich where they cite and rely on a medical journal article that is not valid. They both supported their claim that the testing was not valid on a publication which was contradicted. Dr. Cole stated under 3 oath that he knew or should have known that the minimonograph #32 was reversed. I find that both of these doctors have an obligation to verify what it stated in their peer reviews.
I find based on the evidence that the Respondent’s denials were not substantiated and the Applicant is entitled to payment for the electrodiagnostic testing of the patient’s upper and lower extremities conducted on July 18, 2008.
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