February 10, 2004

Abraham v Country-Wide Ins. Co. (2004 NY Slip Op 50388(U))

https://www.beynensonlaw.com/case-law/abraham-v-country-wide-ins-co-2004-ny-slip-op-50388u/

Court: Appellate Term, Second Department
Decided: February 10, 2004
Citation: 2004 NY Slip Op 50388(U)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 6 later decisions (see Cited by)
Issues: Medical necessity Fee schedule Verification requests
Legal questions: Lack of medical necessity · Outstanding verification and premature actions · Proving a fee schedule defense (see the maps)

Cite as

Abraham v Country-Wide Ins. Co., 2004 NY Slip Op 50388(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2004)

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.

The insurer's unsworn nurses' reviews failed to raise a triable issue of medical necessity because the reviewers' qualifications were not shown. The Appellate Term, Second Department, modified the order to grant the providers partial summary judgment, remanding for statutory interest, attorney's fees, and further proceedings on the remaining claim. The reviews neither established training or experience qualifying the nurses as experts nor supplied sworn evidence. The insurer also failed to substantiate its fee-schedule defense under Insurance Law § 5108 (a), (c). Summary judgment remained denied on the claim subject to unrebutted timely verification requests under former 11 NYCRR 65.15 (d) (1), (2): without proof of compliance, the providers failed to establish a proper claim, and the insurer had no obligation to act.

Reported in New York Official Reports at Abraham v Country-Wide Ins. Co. (2004 NY Slip Op 50388(U))

[*1]

Abraham v Country-Wide Ins. Co.

2004 NY Slip Op 50388(U)

Decided on February 10, 2004

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This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:ARONIN, J.P., GOLIA and RIOS, JJ.
NO. 2003-29 Q C

JAMIL M. ABRAHAM M.D. P.C., d/b/a PARK HEALTH CENTER ROCKAWAY BOULEVARD MEDICAL P.C. SURE CHIROPRACTIC P.C. PARK ALTERNATIVE MEDICINE P.C. a/a/o Joziel Leconte, Appellants, –
against
COUNTRY-WIDE INSURANCE COMPANY, Respondent.

Appeal by plaintiffs from an order of the Civil Court, Queens County (A. Gazzara, J.), entered March 27, 2002, denying their motion for summary judgment.

Order unanimously modified by providing that plaintiffs’ motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $2,559.39, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees, and for all further proceedings on the remaining portion of the claim; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for medical treatment provided their assignor, plaintiffs moved for summary judgment. Defendant opposed and submitted nurses’ unsworn reviews of the files which concluded that the treatments were medically unnecessary. Defendant contends that said reviews sufficed to create a triable issue of medical necessity. Plaintiffs rejected the proof as inadequate. In our view, the medical reviews failed to create a triable issue of material fact as to the treatment’s medical necessity.

As a general rule, for purposes of medical diagnosis and treatment, a nurse is a mere lay informant (e.g. Dombrowski v Moore, 299 AD2d 949, 951 [2002]) whose medical opinions and conclusions drawn from the facts are incompetent and inadmissible (Nucci v Proper, 270 AD2d 816, 817 [2000], affd 95 NY2d 597 [2001]; People v Russell, 165 AD2d 327, 332 [1991]; see Prince, Richardson on Evidence § 7-101 [Farrell 11th ed]). Even were we to find that based on [*2]their “formal training or long observation and actual experience” the reviewers were qualified to state an expert opinion on the relevant issues (People v Monroe, 307 AD2d 588, 591 [2003]), the nurses’ affidavits failed to set forth an account of their training or observations and experience sufficient to establish the admissibility of the medical opinions set forth therein. In any event, none of the reviews were sworn, and for this reason also, they “did not constitute competent evidence sufficient to defeat [a motion for summary judgment]” (Bourgeois v North Shore Univ. Hosp. at Forest Hills, 290 AD2d 525, 526 [2002]).

As to defendant’s remaining defense, that the benefits sought exceeded those permitted by Workers’ Compensation schedules (Insurance Law § 5108 [a]), we have held that by virtue of a timely claims denial an insurer is entitled to interpose the defense in opposition to a claimant’s motion for summary judgment (Park Health Ctr. v Prudential Prop. & Cas. Ins. Co., NYLJ, Dec. 14, 2001 [App Term, 2d & 11th Jud Dists]; see Insurance Law § 5108 [c] [“(n)o provider of health services . . . may demand or request any payment in addition to the (authorized) charges”]; Goldberg v Corcoran, 153 AD2d 113, 119 [1989]; e.g. Murali v Upton, 175 Misc 2d 186, 187 [Civ Ct, NY County (1997)] [section 5108 (c) bars any no-fault claim exceeding “the legally permissible fee”]). Nevertheless, defendant failed to establish that any of the charges exceeded that permitted by law by evidentiary proof sufficient to create a triable issue of material fact.

Finally, summary judgment was properly denied as to the $54.74 claim. Plaintiffs did not allege the date defendant received the claim forms and failed to rebut defendant’s documentary proof that both its initial and follow-up verification requests, dated February 22, 2001 and March 24, 2001, were timely (11 NYCRR 65.15 [d] [1], [2]). Absent the requested verification, an insurer is under no obligation to act on a claim (New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2002]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 700 [2001]), and without proof of their compliance with the verification requests, plaintiffs failed to prove prima facie a proper claim for no-fault benefits.

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $2,559.39, the portion of the claim for which summary judgment is granted (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 [b] [6]; St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]), and for all further proceedings on the remainder of the claim.
Decision Date: February 10, 2004

Legal questions (3)

Questions 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

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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 unsworn nurses' file reviews were incompetent, with no shown qualifications to give medical opinions, and did not raise a triable issue of medical necessity, so the provider got partial summary judgment.

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

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. One decision in other departments that cites or is cited by this one is on the full map.

Outstanding verification and premature actions

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Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?

This decision: Timely requests went unanswered; the claim is not overdue and the action is premature (rules on the question, but another ground decided the case)

Held summary judgment properly denied on one claim because the provider failed to rebut proof of timely initial and follow-up verification requests or show compliance, so the insurer had no obligation to act.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decisionCites it or cited by itCited or followed

Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 153 (this one included) are in the same category.

Proving a fee schedule defense

Open the full map

Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Court finally rejected the fee schedule defense; provider recovers the disputed amount (rules on the question, but another ground decided the case)

Held the insurer, though entitled to raise the defense by timely denial, offered no evidentiary proof that any charge exceeded the fee schedule, insufficient even to raise a triable issue.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followed

Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 29 (this one included) are in the same category.

Cited by (14)

A label shows how the later decision treated this one.

Tahir v Progressive Cas. Ins. Co. (2006 NY Slip Op 26149) FollowedMedicare noncompensability alone does not justify denial of a no-fault claim for sensory nerve conduction threshold testing.
A.B. Med. Servs. PLLC v Country-Wide Ins. Co. (2005 NY Slip Op 50255(U)) FollowedAn investigation-delay letter identifying no verification sought or source does not toll the 30-day claim determination period.
Triboro Chiropractic & Acupuncture, PLLC v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51175(U)) FollowedThe provider lacked admissible billing proof, while the insurer failed to establish its IME nonappearance and fee-schedule defenses.
Queens Blvd. Med. v Travelers Indem. Co. (2004 NY Slip Op 24101) FollowedThe insurer failed to disprove medical necessity after its expert was excluded for lacking expertise in biofeedback for back pain.
Triboro Chiropractic & Acupuncture P.L.L.C v Allstate Ins. Co. (2006 NY Slip Op 51740(U)) FollowedThe insurer failed to support its concurrent-care fee defense or prove mailing of the pre-claim IME scheduling letters.
Yklik Med. Supply, Inc. v Allstate Ins. Co. (2008 NY Slip Op 28532) FollowedAn insurer must issue a timely denial to preserve a fee-schedule defense, including a defense of partial payment under the schedule.
SZ Med. P.C. v Country-Wide Ins. Co. (2006 NY Slip Op 26194)An insurer waives the 45-day submission defense by omitting notice that reasonable justification can excuse a late claim.
A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. (2006 NY Slip Op 50504(U))The providers obtained partial summary judgment because denials were untimely or defenses lacked evidentiary support.
Triboro Chiropractic v New York Cent. Mut. Fire Ins. Co. (2005 NY Slip Op 50110(U))An assignor's failure to attend IMEs requested before claim submission rebuts the claim forms' presumption of medical necessity.
Patil v Countrywide Ins. Co. (2006 NY Slip Op 50306(U))The provider failed to establish admissibility of its claim forms through counsel's affirmation or its own affidavit.

Show all 14 citing decisions

Similar decisions

A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50387(U))The insurer's EUO request did not toll the denial period under the former regulations, and its fraud evidence raised no triable issue.
A.B. Med. Servs., PLLC v Country-Wide Ins. Co. (2009 NY Slip Op 50583(U))The insurer's affidavits failed to establish mailing of the IME scheduling letters, defeating its IME nonappearance defense.
A.B. Med. Servs. v GEICO Ins. (2003 NY Slip Op 23949)A provider need not prove medical necessity at the claim stage or on a subsequent motion for summary judgment.
A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. (2005 NY Slip Op 50076(U))The insurer's affidavit and EUO evidence raised a triable coverage issue despite untimely denials of certain claims.
A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2007 NY Slip Op 50680(U))Peer reviews citing insufficient information do not raise a medical-necessity issue without proof that the insurer sought verification.