Legal Questions

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

A decision decides this question when it rules on whether the insurer's medical evidence (a sworn peer review report, an IME report, or a medical expert's trial testimony) established that the billed services or supplies were not medically necessary, and/or whether the provider's opposing evidence rebutted that showing. On motions this means the prima facie showing (a factual basis and medical rationale in admissible form), the provider's rebuttal (an expert affidavit that meaningfully refers to and addresses the insurer's report), and whether the insurer's proof at least raises a triable issue against the provider's own motion. At trial it also covers who bears which burden on the defense and whether the insurer's expert testimony and the records it relies on are admissible.

Settled at the Appellate Division, no conflicting department. No Court of Appeals decision in the database decides this question. On motions the rule is consistent across the Second Department Appellate Division and both Appellate Terms. The insurer makes a prima facie showing with a sworn or affirmed peer review or IME report that sets out a factual basis and medical rationale. That report also raises a triable issue against the provider's motion. The provider rebuts with competent medical evidence that meaningfully refers to and addresses the insurer's findings. At trial both Appellate Terms use a burden-shifting framework (West Tremont, 2006). In the Second Department Appellate Term, once the insurer rebuts the presumption of medical necessity, the provider bears the ultimate burden of proving necessity by a preponderance (Park Slope v Travelers, 2012; Dayan, 2015; James J. Kim, 2023). Several Second Department trial courts said the insurer bears the burden of persuasion (Nir v Allstate, 2005; CityWide, 2004; Complete Med. Care, 2008; All Boro, 2012; Longevity, 2022). That is a trial-level divergence on the burden of persuasion, not an appellate split.

Leading authorities · Authority map · Decisions by court · Plain-text version (Markdown)

Leading authorities

  • AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C. (2016 NY Slip Op 00916) Appellate Division, Second Department, 2016Affirmed medical evaluations make the showing; provider's records can rebutThe insurer's affirmed medical evaluations made a prima facie showing that the services were not medically necessary. The provider's affidavits and medical records raised a triable issue of fact, so summary judgment was properly denied.
    the plaintiff submitted affirmed medical evaluations which made a prima facie showing [*2]that the services at issue were not medically necessary
  • A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (2007 NY Slip Op 03636) Appellate Division, Second Department, 2007Peer-review-based denial raises triable issue against provider's motionThe provider made its prima facie case, but the insurer raised a triable issue on its defense that the benefits were properly denied for lack of medical justification. The denial form need not set out a medical rationale.
    in response, the defendant raised a triable issue of fact with respect to its argument that the claimed benefits were properly denied on the ground of lack of medical justification
  • A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) Appellate Term, Second Department, 2007Unrebutted peer review entitles insurer to summary judgmentThe insurer's peer review report established prima facie that the MRIs were not medically necessary. Because the provider did not rebut it, the court searched the record and granted the insurer's cross motion.
    Defendant’s peer review report established prima facie that there was no medical necessity for the MRIs performed by plaintiff, which evidence was unrebutted, thereby entitling defendant to the relief it sought below
  • Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) Appellate Term, Second Department, 2009Rebuttal must meaningfully refer to the peer reviewA sworn peer review with a factual basis and medical rationale shifted the burden to the provider. A conclusory affidavit that only disagreed, without meaningfully referring to or discussing the peer review, did not raise a triable issue.
    The affidavit submitted by plaintiff in opposition was insufficient as it merely consisted of a conclusory statement by the affiant that he disagreed with the opinion of defendant s peer review doctor that there was no medical necessity for the services rendered. The affiant did not meaningfully refer to, or discuss, the determination of defendant’s doctor.
  • West Tremont Med. Diagnostic, P.C. v Geico Ins. Co. (2006 NY Slip Op 51871(U)) Appellate Term, Second Department, 2006At trial, insurer's showing shifts burden to providerAt trial, the claim forms raise a presumption of medical necessity. The insurer's unrebutted expert testimony of no medical necessity shifted the burden to the provider. The provider offered no evidence, so judgment was directed for the insurer.
    Where the defendant insurer presents sufficient evidence to establish a defense based on the lack of medical necessity, the burden shifts to the plaintiff which must then present its own evidence of medical necessity
  • Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co. (2012 NY Slip Op 22200) Appellate Term, Second Department, 2012Trial: records admissible; provider bears ultimate burdenThe medical records the insurer's peer reviewer relied on are admissible at trial because they are offered only to show what was conveyed to the insurer, not for their truth. Once the insurer meets its burden, the provider must prove medical necessity by a preponderance of the evidence.
    Assuming the insurer is successful in satisfying its burden, it is ultimately plaintiff who must prove, by a preponderance of the evidence, that the services or supplies were medically necessary.
  • Alvarez v Prospect Hosp. 68 NY2d 320Summary-judgment burden shifting applied to the insurer's peer review showing and the provider's rebuttal (cited by about 51 candidates).Not in our database.
  • Zuckerman v City of New York 49 NY2d 557Opponent must produce evidentiary proof in admissible form to raise a triable issue; cited by about 112 candidates in medical-necessity rulings.Not in our database.
  • Arnica Acupuncture PC v Interboro Ins. Co. 137 AD3d 421Cited by App Term 1st (TC Acupuncture 2016, Mingmen 2018) for the rule that subjective complaints of pain cannot overcome the objective tests in the insurer's IME report. The text is not in the database.Not in our database.
  • Insurance Law § 5102 (a) (1); 11 NYCRR 65-1.1 statute/regulationOnly 'necessary expenses' are reimbursable; this is the source of the defense (Long Is. Radiology, 36 AD3d 763).Not in our database.
  • 11 NYCRR 65-3.8 (b) (4) regulationA denial may rest on a peer review or IME report, which must be released on written request (A.B. Med. Servs. v Liberty Mut., 39 AD3d 779).Not in our database.

Authority map

Each circle is a decision on this question, placed by court and date; its colour is the position it took. Lines are citations between them. Select a circle (or find a decision by name) to see its links and summary. The same decisions are listed by court below the map.

Insurer's proof established lack of medical necessity and the provider failed to rebut itProvider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)Insurer's proof was enough to defeat the provider's motion but not to winInsurer's medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)Trial ruling on burden or admissibility of the insurer's proof; matter sent back without a findingRing: rules on the question, but another ground decided the caseContrasted, distinguished or limitedDeclined to follow, questioned, overruled or reversedCited
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How the rule was applied, by court

Court Unrebutted, insurer prevails Provider's rebuttal sufficient Insurer raised triable issue Insurer's proof insufficient Trial error, new trialTotal
Appellate Division, First Department001001
Appellate Division, Second Department022509
Appellate Division, Third Department010001
Appellate Division, Fourth Department001001
Appellate Term, First Department257518560
Appellate Term, Second Department28885605825516
Trial courts in the First Department3214010
Trial courts in the Second Department278544387
Trial courts in the Fourth Department000101

Decisions (686)

Every decision in our database that rules on this question: highest court first, then by department, newest first. 631 turn on it; the others rule on it alongside a different main ground (marked "also decides"). The one-sentence summaries describe what each court said on this question.

How this page is made: the decisions are those in our case-law database that cite this question's leading cases or were tagged with its subject. A language model read each one in full and recorded whether it rules on the question, the position it took and a one-sentence summary; a second, independent reading checked every entry. Court, department, date and the citation links come from the database. Read the decision before relying on it.