that "it is not believable that a physician would send a patient who needed emergency treatment by air ambulance to another city if the appropriate services were available in the very hospital where the patient was staying." (Rep. & Rec., pp.7-8). The Magistrate Judge found that the only evidence in the record detracting from this conclusion was the unidentified nurse's note, which concluded that the procedure could have been performed in Buffalo, but did not identify any hospital where it could have been performed. (Rep. & Rec., p.8).
This Court concurs with the Magistrate Judge's review of the record, and rejects the Secretary's arguments in contravention of the Magistrate Judge's decision. The record provides ample indications that the decision to transport the plaintiff to Cleveland, was based on the conclusion that the Cleveland Clinic was the "nearest appropriate hospital" in consonance with the regulation. The record includes Dr. Glover's questionnaire responses, documentation and correspondence from plaintiff's treating physician, and documentation from plaintiff's treating cardiologist, all attesting to plaintiff's emergency status, and the medical necessity of transfer to the Cleveland Clinic, and certification that the destination was the nearest institution with proper facilities for patient care. (Rep. & Rec., pp.2,4,7; plaint. Memo, pp.5-7).
The arguments proffered by the Secretary would require this Court to conclude that proper care was available in Buffalo, but the physicians either chose not to utilize it or cavalierly failed to check for its availability. However, this Court cannot conclude that a physician would knowingly take a risk of endangering his patient by ignoring immediately and locally available emergency care. Further, this Court cannot conclude that the physicians were not aware of the procedure's availability on emergency patients in October of 1987. As the Magistrate Judge appropriately concluded in this regard, common sense indicates that plaintiff's physician would not have sent his patient to another hospital if the procedure were available in the hospital in which the patient was presently located, and in which both Dr. Branconi and the attending cardiologist were practicing.
The only evidence contradicting the decision to transport plaintiff to Cleveland, is the unsigned note by a reviewing nurse, which concluded, without substantiation, that the procedure could have been done in or nearer to Buffalo. Similarly, the only evidence contradicting plaintiff's unstable status is the admitting report at the Cleveland Clinic. However, this Court cannot interpret either or both of these considerations as detracting from the substantial evidence in the record to the contrary. First, the reviewing nurse was never in contact with the plaintiff. Second, the plaintiff's medical stability could have conceivably changed from Buffalo to Cleveland. Third, and most importantly, in considering these bits of evidence and in rejecting or giving little weight to the physicians' evidence, the Secretary has failed to present a reasoned basis for its decision for declining to do so, in conformity with statutory purposes. Sullivan, 927 F.2d at 60. Consequently, this Court finds that the record contains uncontradicted, substantial evidence that the Cleveland Clinic was the nearest, appropriate facility to provide the emergency angiogram.
Finally, in rendering its decision, this Court wishes to express its cognizance of the Secretary's contention that if a reviewing court finds that the Secretary's conclusions of facts are supported by substantial evidence, then such findings are conclusive, and even if the reviewing court also finds that there is substantial facts for the plaintiff's position, the reviewing court must uphold the Secretary's denial of reimbursement. (Sec. Obj., pp.7-8). In making its decision, this Court notes its concurrence with the Magistrate Judge that the Secretary's denial of reimbursement is not supported by substantial evidence.
Based upon the foregoing considerations, this Court finds that the record contains substantial evidence to indicate that plaintiff was sent to the nearest appropriate facility as defined under 42 C.F.R. § 410.40. Therefore, this Court adopts and affirms the conclusions of fact and law in the December 30, 1991 Report and Recommendation of the Magistrate Judge, directing that the decision of the Secretary be reversed and that the Secretary be directed to reimburse plaintiff for his air ambulance transportation from Buffalo, New York to Cleveland, Ohio on October 22, 1987.
For the reasons set forth above, this Court finds the Secretary's objections to the Magistrate Judge's December 30, 1991 Report and Recommendation unpersuasive. Accordingly, after careful review, this Court hereby adopts the December 30, 1991 Report and Recommendation of the Magistrate Judge in its entirety.
IT IS HEREBY ORDERED, that this Court accepts the December 30, 1991 Report and Recommendation of the Magistrate Judge.
FURTHER, that the Clerk of the Court is directed to enter final judgment in favor of the plaintiff and against the defendant.
FURTHER, that the Secretary is directed to make the appropriate payment on plaintiff's behalf under Medicare Part B for the air ambulance service provided on October 22, 1987.
Dated: September 8, 1992
Buffalo, New York
WILLIAM M. SKRETNY
United States District Judge