EMG Medically Necessary for Car Accident Victim--GEICO Must Pay

Case: Bajaj v. GEICO

Court: District Court, Nassau County, New York, First District

Date: June 18, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens accident lawyer)

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Facts: Battle of the experts, in this case that related to a car accident indirectly. Plaintiff, a physician, treated the car accident victim, and has sued GEICO to get her bill paid under New York's No-Fault law.

The issue was whether an expensive medical test performed by Dr. Bajaj on the accident victim, an EMG test, was medically necessary. If not, then GEICO shouldn't have to pay for it.

Now it gets interesting.

GEICO refused to pay based on a claimed lack of "medical necessity," based on a "peer review" report by one of its hired doctors. A peer review means that GEICO's doctor only looked at Dr. Bajaj's records, but never examined or even met the car accident victim. Based on the peer review by its hired doctor, GEICO concluded that the EMG test wasn't medically necessary and it refused to pay Dr. Bajaj. And this lawsuit followed -- seeking only $1,509, but trying to vindicate a principle and, I guess, to show that this doctor wouldn't take crap from GEICO.

At trial, GEICO used as a witness a different physician from the doctor who conducted the actual peer review. GEICO's doctor testified that even though Dr. Bajaj's records showed that her patient (the car accident victim) showed evidence of lumbar radiculopathy, the conservative physical therapy the patient was getting was a proper treatment and there was no need ("medical necessity") for the EMG test. However, he admitted that the accident victim's MRI test showed lumbar disc damage and that the MRI couldn't show nerve damage.

Next, Dr. Bajaj testified. She explained why she ordered the EMG test -- that it was to identify nerve damage in her patient's lumbar spine. This EMG did show positive findings of nerve damage, and was helpful in showing if the patient might recover with or without surgery. Dr. Bajaj, of course, maintained theat her prescribed EMG test was medically necessary.

Held: Dr. Bajaj's testimony was believed (more credible) than the GEICO doctor and she wins judgment for $1,509.24.

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