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July 13, 2016

New Horizon Surgical Ctr., L.L.C. v Allstate Ins. Co. (2016 NY Slip Op 51125(U))

https://www.beynensonlaw.com/case-law/new-horizon-surgical-ctr-l-l-c-v-allstate-ins-co-2016-ny-slip-op51125u/

Court
Appellate Term, Second Department
Decided
July 13, 2016
Citation
2016 NY Slip Op 51125(U)
Posture
Trial
Outcome
Insurer prevailed
Later treatment
Followed in 1 later decision (see Cited by)
Issues
Medical necessity Trial and evidence
Legal questions
Lack of medical necessity (see the maps)
Cite as
New Horizon Surgical Ctr., L.L.C. v Allstate Ins. Co., 2016 NY Slip Op 51125(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 unrebutted chiropractic expert testimony established that the MUA procedure and related facility fee lacked medical necessity. The provider stipulated to the expert's credentials and expertise. Although the Civil Court found the testimony credible and sufficient, it awarded the provider judgment on the premise that chiropractors could not perform MUA in New York. The Appellate Term, Second Department, reversed and remitted for judgment dismissing the complaint for the insurer. The testimony supplied a factual basis and medical rationale, and the provider called no witnesses to meet its burden of proving necessity by a preponderance of the evidence. The court did not decide whether chiropractors may perform MUA in New York.

Reported in New York Official Reports at New Horizon Surgical Ctr., L.L.C. v Allstate Ins. Co. (2016 NY Slip Op 51125(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

New Horizon Surgical Center, L.L.C., as Assignee of VANESSA FLORES-CASTRO, Respondent,

against

Allstate Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered November 12, 2014. The judgment, entered upon a decision of the same court dated February 4, 2014, after a nonjury trial, awarded plaintiff the principal sum of $7,590.60.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated February 4, 2014 is deemed a premature notice of appeal from the judgment entered November 12, 2014 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

In this action by a New Jersey facility to recover assigned first-party no-fault benefits, the parties stipulated, prior to the commencement of a nonjury trial, that defendant had received plaintiff’s claim form seeking $7,590.60 for a facility fee for a manipulation under anesthesia (MUA) procedure performed at plaintiff’s facility and that defendant had issued a timely denial of claim form premised upon a lack of medical necessity, based on the peer review report of Dr. Robert Snitkoff, a licensed chiropractor, who had been certified in MUA. The sole witness to testify at trial was defendant’s witness, Dr. Paul Priolo, a licensed chiropractor, certified in MUA. Plaintiff stipulated to Dr. Priolo’s “credentials [and] expertise.” Dr. Priolo testified that he had concluded, based upon his review of Dr. Snitkoff’s peer review report and the documentation upon which the peer review report relied, that there was a lack of medical necessity for the MUA procedure.

In a decision after trial, the Civil Court (Philip S. Straniere, J.) found that Dr. Priolo was a credible witness and that his testimony had sufficiently demonstrated a lack of medical necessity. Because plaintiff had not submitted any evidence to the contrary, the Civil Court determined that “the action must be dismissed.” Nevertheless, the court, in its decision, which ultimately found for plaintiff in the sum of $7,590.60, stated the following: “This court has held that chiropractors cannot perform MUA in New York because it is considered a surgical procedure and only physicians may perform. Therefore opinion of chiropractor is not sufficient to establish lack of medical/chiropractic necessity of MUA or surgical center charge.” A judgment awarding plaintiff the principal sum of $7,590.60 was entered pursuant to the decision.

The issue in this case is not whether chiropractors are permitted to perform MUA, but [*2]rather whether defendant, through the testimony of its expert witness, satisfied its burden of establishing a lack of medical necessity and, if it did so, whether plaintiff proved, by a preponderance of the evidence, that the services rendered were medically necessary (see Park Slope Med. & Surgical Supply v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Plaintiff stipulated to Dr. Priolo’s expertise, and there is no indication in the record that Dr. Priolo was not competent to assert his opinion as to the lack of medical necessity of the procedure performed (see Channel Chiropractic, P.C. v Country-Wide Ins. Co., 38 AD3d 294 [2007]; see also Patil v Countrywide Ins. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50306[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006]) and, by extension, the facility fee which was sought in the claim in question. Dr. Priolo’s testimony, which the court found credible, demonstrated a factual basis and medical rationale for his determination that there was no medical necessity for the services at issue (see Alev Med. Supply, Inc. v Government Employees Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As plaintiff called no witnesses to rebut Dr. Priolo’s testimony (see West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), we disagree with the Civil Court’s ultimate determination in favor of plaintiff and find that the Civil Court should have dismissed the complaint.

In view of the foregoing, we need not decide whether the Civil Court erred in finding that chiropractors cannot perform MUA procedures in New York.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

Pesce, P.J., Solomon and Elliot, JJ., concur.


Decision Date: July 13, 2016

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 proof established lack of medical necessity and the provider failed to rebut it

Directed judgment for the insurer because its credited chiropractor expert, whose expertise was stipulated, gave a factual basis and medical rationale for finding the MUA unnecessary, and the provider called no rebuttal witnesses.

  • Appellate DivisionApp Div 9
  • Appellate TermApp Term 521
  • Trial courtsTrial 87
2022, Appellate Division: 2 decisions (2 Insurer's proof insufficient)2020, Appellate Division: 1 decision (1 Provider's rebuttal sufficient)2019, Appellate Division: 1 decision (1 Insurer's proof insufficient)2016, Appellate Division: 2 decisions (1 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2008, Appellate Division: 1 decision (1 Insurer's proof insufficient)2007, Appellate Division: 2 decisions (2 Insurer raised triable issue)2023, Appellate Term: 1 decision (1 Provider's rebuttal sufficient)2022, Appellate Term: 1 decision (1 Unrebutted, insurer prevails)2021, Appellate Term: 4 decisions (4 Unrebutted, insurer prevails)2020, Appellate Term: 5 decisions (1 Unrebutted, insurer prevails, 2 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 1 Trial error, new trial)2019, Appellate Term: 15 decisions (8 Unrebutted, insurer prevails, 4 Insurer's proof insufficient, 3 Trial error, new trial)2018, Appellate Term: 13 decisions (7 Unrebutted, insurer prevails, 2 Provider's rebuttal sufficient, 4 Trial error, new trial)2017, Appellate Term: 20 decisions (5 Unrebutted, insurer prevails, 7 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 7 Trial error, new trial)2016, Appellate Term: 28 decisions (16 Unrebutted, insurer prevails, 7 Provider's rebuttal sufficient, 3 Insurer raised triable issue, 2 Insurer's proof insufficient)2015, Appellate Term: 22 decisions (9 Unrebutted, insurer prevails, 9 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 2 Insurer's proof insufficient, 1 Trial error, new trial)2014, Appellate Term: 40 decisions (16 Unrebutted, insurer prevails, 22 Provider's rebuttal sufficient, 1 Insurer's proof insufficient, 1 Trial error, new trial)2013, Appellate Term: 57 decisions (40 Unrebutted, insurer prevails, 12 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 2 Insurer's proof insufficient, 2 Trial error, new trial)2012, Appellate Term: 76 decisions (54 Unrebutted, insurer prevails, 10 Provider's rebuttal sufficient, 2 Insurer raised triable issue, 5 Insurer's proof insufficient, 5 Trial error, new trial)2011, Appellate Term: 56 decisions (42 Unrebutted, insurer prevails, 6 Provider's rebuttal sufficient, 2 Insurer raised triable issue, 2 Insurer's proof insufficient, 4 Trial error, new trial)2010, Appellate Term: 66 decisions (50 Unrebutted, insurer prevails, 5 Provider's rebuttal sufficient, 9 Insurer raised triable issue, 2 Insurer's proof insufficient)2009, Appellate Term: 32 decisions (17 Unrebutted, insurer prevails, 2 Provider's rebuttal sufficient, 9 Insurer raised triable issue, 4 Insurer's proof insufficient)2008, Appellate Term: 29 decisions (14 Unrebutted, insurer prevails, 9 Insurer raised triable issue, 6 Insurer's proof insufficient)2007, Appellate Term: 9 decisions (3 Unrebutted, insurer prevails, 3 Insurer raised triable issue, 2 Insurer's proof insufficient, 1 Trial error, new trial)2006, Appellate Term: 20 decisions (1 Unrebutted, insurer prevails, 11 Insurer raised triable issue, 8 Insurer's proof insufficient)2005, Appellate Term: 16 decisions (6 Insurer raised triable issue, 10 Insurer's proof insufficient)2004, Appellate Term: 10 decisions (1 Insurer raised triable issue, 9 Insurer's proof insufficient)2003, Appellate Term: 1 decision (1 Insurer raised triable issue)2022, Trial courts: 6 decisions (4 Unrebutted, insurer prevails, 1 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2021, Trial courts: 2 decisions (1 Unrebutted, insurer prevails, 1 Provider's rebuttal sufficient)2017, Trial courts: 2 decisions (1 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2015, Trial courts: 1 decision (1 Unrebutted, insurer prevails)2014, Trial courts: 3 decisions (2 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2013, Trial courts: 2 decisions (1 Unrebutted, insurer prevails, 1 Trial error, new trial)2012, Trial courts: 7 decisions (4 Unrebutted, insurer prevails, 3 Insurer's proof insufficient)2011, Trial courts: 4 decisions (4 Insurer's proof insufficient)2010, Trial courts: 10 decisions (2 Unrebutted, insurer prevails, 7 Insurer's proof insufficient, 1 Trial error, new trial)2009, Trial courts: 5 decisions (2 Unrebutted, insurer prevails, 2 Insurer raised triable issue, 1 Insurer's proof insufficient)2008, Trial courts: 11 decisions (6 Unrebutted, insurer prevails, 5 Insurer's proof insufficient)2007, Trial courts: 5 decisions (1 Provider's rebuttal sufficient, 4 Insurer's proof insufficient)2006, Trial courts: 9 decisions (2 Unrebutted, insurer prevails, 1 Insurer raised triable issue, 6 Insurer's proof insufficient)2005, Trial courts: 9 decisions (2 Unrebutted, insurer prevails, 1 Insurer raised triable issue, 6 Insurer's proof insufficient)2004, Trial courts: 8 decisions (1 Unrebutted, insurer prevails, 1 Insurer raised triable issue, 5 Insurer's proof insufficient, 1 Trial error, new trial)2003, Trial courts: 1 decision (1 Insurer's proof insufficient)2026, Trial courts: 1 decision (1 Provider's rebuttal sufficient)2025, Trial courts: 1 decision (1 Unrebutted, insurer prevails)This decision
20052010201520202025
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, 315 (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.

Cited in this decision

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

  • Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co. (2012 NY Slip Op 22200) FollowedMedical records supporting a peer review are admissible to show information conveyed to the insurer rather than the truth of their contents.
  • Channel Chiropractic, P.C. v Country-Wide Ins. Co. (2007 NY Slip Op 01973) FollowedA nurse's peer review denying no-fault benefits for lack of medical necessity is not per se invalid.
  • 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.
  • Alev Med. Supply, Inc. v Government Empls. Ins. Co. (2013 NY Slip Op 51096(U)) FollowedA peer review report is inadmissible at trial to prove lack of medical necessity; that issue is resolved through medical expert testimony.
  • West Tremont Med. Diagnostic, P.C. v Geico Ins. Co. (2006 NY Slip Op 51871(U)) FollowedA diagnostic provider performing prescribed MRIs remains subject to a lack-of-medical-necessity defense.

Cited by

A label shows how the later decision treated this one.

  • Cappello v Global Liberty Ins. Co. of N.Y. (2017 NY Slip Op 51415(U)) FollowedThe insurer's unrebutted peer review testimony established that electromyography and nerve conduction testing lacked medical necessity.

Similar decisions

  • Mollo Chiropractic, PLLC v American Commerce Ins. Co. (2020 NY Slip Op 51548(U))The insurer's expert supplied a factual basis and medical rationale for finding manipulation under anesthesia medically unnecessary.
  • Drew De Marco, P.C. v Allstate Ins. Co. (2013 NY Slip Op 52212(U))A stipulated chiropractic expert need not be certified in manipulation under anesthesia to assess those procedures' medical necessity.
  • PSW Chiropractic Care, P.C. v Maryland Cas. Co. (2011 NY Slip Op 51719(U))The insurer failed to prove lack of medical necessity at trial, and the record supported deference to the trial court's credibility findings.
  • Innovative Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 50884(U))The treating doctor's conclusory reaffirmation of medical necessity failed to rebut the insurer's sworn peer review and IME reports.
  • American Chiropractic Care, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50346(U))The provider's treating chiropractor's sworn letter raised a factual issue on medical necessity despite the insurer's peer review.
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