February 2, 2005

A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co. (2005 NY Slip Op 50114(U))

https://www.beynensonlaw.com/case-law/a-b-med-servs-pllc-v-american-mfrs-mut-ins-co-2005-ny-slip-op-50114u/

Court: Appellate Term, Second Department
Decided: February 2, 2005
Citation: 2005 NY Slip Op 50114(U)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Contrasted (cf., but see) in 1 and followed in 5 later decisions (see Cited by)
Issues: Medical necessity Verification requests
Legal questions: Lack of medical necessity (see the maps)

Cite as

A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 2005 NY Slip Op 50114(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2005)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

An insurer cannot defeat summary judgment with a peer review citing insufficient information without showing it sought verification. The insurer timely denied the provider's claims based on a peer review that attributed its medical-necessity conclusion to insufficient information. That deficiency alone did not raise a triable issue without proof of requests under the verification procedures in former 11 NYCRR 65.15 (d) and (e), now 11 NYCRR 65-3.5 (b) and 65-3.6 (b). The Appellate Term, Second Department, reversed the order, granted the provider's summary judgment motion, and remanded for calculation of statutory interest and assessment of attorney fees. The insurer was precluded from asserting lack of medical necessity.

Reported in New York Official Reports at A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co. (2005 NY Slip Op 50114(U))

[*1]

A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co.

2005 NY Slip Op 50114(U)

Decided on February 2, 2005

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 2, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-290 K C

A.B. MEDICAL SERVICES PLLC, Appellant, -and- D.A.V. CHIROPRACTIC P.C. DANIEL KIM’S ACUPUNCTURE P.C. SQUARE SYNAGOGUE TRANSPORTATION INC. a/a/o Alfred Royston, Plaintiffs,
against
AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, Respondent.

Appeal by plaintiff A.B. Medical Services PLLC from an order of the Civil Court, Kings County (M. Solomon, J.), entered December 12, 2003, which denied its motion for summary judgment.

Order unanimously reversed without costs, motion by plaintiff A.B. Medical Services PLLC for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

“A timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law . . . ” (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004] [citations omitted]). In the instant case, although defendant timely denied the subject claims submitted by A.B. Medical Services PLLC (A.B.), said denials were based upon a peer review which concluded that there was no medical necessity for the procedures performed, in that the reviewer lacked sufficient information upon which to make such a determination. [*2]However, the fact that the reviewer lacked sufficient information does not, in and of itself, demonstrate the existence of a triable issue of fact, without a showing that defendant sought to obtain such information by means of a request pursuant to the verification procedures (see 11 NYCRR 65.15 [d], now 11 NYCRR 65-3.5 [b]; 11 NYCRR 65.15 [e], now 11 NYCRR 65-3.6 [b]). Accordingly, defendant is precluded from asserting the defense of lack of medical necessity (Amaze Med. Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 [*3]
NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Therefore, A.B.’s motion for summary judgment should have been granted (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Decision Date: February 02, 2005

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)

Held a peer review finding no medical necessity only because the reviewer lacked sufficient information raised no triable issue absent verification requests, so the insurer was precluded from the defense and the provider won summary judgment.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 109 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Amaze Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 24119) FollowedAn insurer may not deny equipment fees as exceeding local prevailing rates when the applicable schedule limits reimbursement to 150% of cost.

Cited by

A label shows how the later decision treated this one.

Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp. (2005 NY Slip Op 50452(U)) Contrasted (cf., but see)An insurer need not seek further verification when a peer review finds no substantiation of equipment's medical necessity in documents obtained for review.
A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2007 NY Slip Op 50680(U)) FollowedPeer reviews citing insufficient information do not raise a medical-necessity issue without proof that the insurer sought verification.
All County Open MRI & Diagn. Radiology P.C. v Travelers Ins. Co. (2006 NY Slip Op 50318(U)) FollowedA peer review citing insufficient information cannot support denial without proof that the insurer sought that information through verification.
Midisland Med., PLLC v Allstate Ins. Co. (2008 NY Slip Op 51861(U)) FollowedThe provider obtained summary judgment on three claims because one peer review was insufficient and two denials lacked timely-mailing proof.
Gaba Med., P.C. v Progressive Specialty Ins. Co. (2012 NY Slip Op 51448(U)) FollowedThe insurer's reduction of a time-based claim to one unit lacked a factual basis because it never sought verification of the time spent.
Eagle Surgical Supply, Inc v Mercury Cas. Co. (2012 NY Slip Op 51286(U)) FollowedThe insurer's peer review report lacked a factual basis and medical rationale because it merely asserted insufficient documentation.
A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co. (2006 NY Slip Op 26118)An insurer may assert the insured's fraudulent policy procurement against a provider assignee despite the 30-day preclusion rule.
Elmont Open MRI & Diagnostic Radiology, P.C. v GEICO Ins. Co. (2006 NY Slip Op 51185(U))A medical necessity denial must state the factual basis and medical rationale with sufficient particularity, even when timely issued.

Similar decisions

A.B. Med. Servs. v N. Y. Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 50507(U))An insurer opposing summary judgment on medical necessity must submit admissible proof even if unaffirmed reports supported a timely denial.
A.B. Med. Servs., Pllc v N. Y. Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 50550(U))An insurer opposing summary judgment on medical necessity must submit admissible proof even if unaffirmed reports supported a timely denial.
A.B. Med. Servs. PLLC v Clarendon Natl. Ins. Co. (2006 NY Slip Op 51415(U))A peer review submitted on summary judgment cannot cure a medical-necessity denial lacking specific facts and medical rationale.
A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (2005 NYSlipOp 50453(U))An unsworn peer review report did not raise a triable issue against the acupuncture provider's prima facie showing.
A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co. (2005 NYSlipOp 50650(U))The medical services provider's summary judgment motion was granted because the insurer supplied no admissible medical necessity opposition.