June 3, 2016

Ji Sung Kim Acupuncture, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50873(U))

https://www.beynensonlaw.com/case-law/ji-sung-kim-acupuncture-p-c-v-american-tr-ins-co-2016-ny-slip-op50873u/

Court: Appellate Term, Second Department
Decided: June 3, 2016
Citation: 2016 NY Slip Op 50873(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Ji Sung Kim Acupuncture, P.C. v American Tr. Ins. Co., 2016 NY Slip Op 50873(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 provider's opposing affidavit failed to rebut the insurer's IME report finding further treatment medically unnecessary. The affirmed report supplied a factual basis and medical rationale, while the provider's owner's affidavit did not meaningfully address its conclusions. The provider did not challenge the finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the contested claims. Dismissal excluded the claim on which the provider had received an unappealed summary judgment award and the additional unpaid portions of other claims that the insurer conceded it owed.

Reported in New York Official Reports at Ji Sung Kim Acupuncture, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50873(U))

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

Ji Sung Kim Acupuncture, P.C., as Assignee of RAMON NUNEZ, Respondent,
against
American Transit Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 3, 2013. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing the complaint, except for so much thereof as sought to recover upon a claim for dates of service February 23-24, 2011 and as sought to recover the sum of $248.64 for claims relating to dates of service February 18, 21, 25, and 28, 2011, and March 2-4, 9-11, and 14, 2011, or, in the alternative, to compel plaintiff to appear for an examination before trial.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing the complaint, except for so much of the complaint as sought to recover upon a claim for dates of service February 23-24, 2011 and as sought to recover the sum of $248.64 for claims relating to dates of service February 18, 21, 25, and 28, 2011, and March 2-4, 9-11, and 14, 2011, are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff’s treating doctor to appear for an examination before trial. Plaintiff cross-moved for summary judgment. By order entered October 3, 2013, the Civil Court denied defendant’s motion, granted the branch of plaintiff’s cross motion seeking summary judgment upon a claim for dates of service February 23-24, 2011, and denied the remainder of plaintiff’s cross motion. The Civil Court held that with respect to all of the remaining claims, the sole issue for trial was defendant’s defense of lack of medical necessity.

Defendant’s appellate brief states that defendant is not appealing from so much of the order as granted plaintiff’s cross motion for summary judgment upon the claim for dates of service February 23-24, 2011 and concedes that defendant owes plaintiff the additional sum sought of $248.64 for claims relating to dates of service February 18, 21, 25, and 28, 2011, and March 2-4, 9-11, and 14, 2011.

In support of its motion, defendant submitted an affirmed report from the doctor who had performed an independent medical examination (IME) of plaintiff’s assignor. The IME report set forth a factual basis and medical rationale for the doctor’s conclusion that there was a lack of medical necessity for further treatment. In opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner who had treated plaintiff, which failed to meaningfully refer to, [*2]let alone sufficiently rebut, the conclusions set forth in the doctor’s report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary judgment dismissing the complaint, except for so much of the complaint as sought to recover upon a claim for dates of service February 23-24, 2011 and as sought to recover the sum of $248.64 for claims relating to dates of service February 18, 21, 25, and 28, 2011, and March 2-4, 9-11, and 14, 2011, are granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

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

Decision Date: June 03, 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

Granted the insurer summary judgment on most claims because its affirmed IME report showed further treatment unnecessary, and the treating owner's affidavit failed to meaningfully refer to or rebut the report.

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.

Cited in this decision

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

Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

Al Acupuncture, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51245(U))The insurer established full fee schedule payment of one acupuncture claim and lack of medical necessity for the remaining claims.
Eastern Star Acupuncture, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 50059(U))The insurer proved IME nonappearance for two claims but lacked proof of nonappearance or timely denial for the other three.
Morris Park Chiropractic, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52017(U))The provider's chiropractor failed to meaningfully address or rebut the IME report finding the disputed services medically unnecessary.
Acupuncture Choice, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51822(U))The provider failed to establish entitlement to summary judgment where timely IME nonappearance denials remained unrebutted.
Flushing Traditional Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51772(U))The insurer established timely denials, full fee-schedule payment for certain acupuncture services and lack of necessity for the remaining services.