June 12, 2015

SMB Med., PC v Federal Ins. Co. (2015 NY Slip Op 50895(U))

https://www.beynensonlaw.com/case-law/smb-med-pc-v-federal-ins-co-2015-ny-slip-op-50895u/

Court: Appellate Term, First Department
Decided: June 12, 2015
Citation: 2015 NY Slip Op 50895(U)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

SMB Med., PC v Federal Ins. Co., 2015 NY Slip Op 50895(U) (App Term, 1st Dept 2015)

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 IME report established that further acupuncture was unnecessary, and the provider's medical report did not address acupuncture. The Appellate Term, First Department, modified the order, insofar as appealed from, to grant the insurer partial summary judgment dismissing the acupuncture portion of the claims. The examining acupuncturist supplied a sufficient factual basis and medical rationale, while the provider's attorney affirmation and doctor's report raised no triable issue concerning those services. The matter was remanded to determine the amount attributable to acupuncture because the insurer's motion papers did not establish it. Denial of summary judgment on the remaining claims was affirmed because conflicting expert opinions raised a triable issue of medical necessity.

Reported in New York Official Reports at SMB Med., PC v Federal Ins. Co. (2015 NY Slip Op 50895(U))

SMB Medical, PC, a/a/o Faim Forto Plaintiff-Respondent, –
against
Federal Insurance Company, Defendant-Appellant.

Defendant, as limited by the briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (David B. Cohen, J.), entered October 17, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (David B. Cohen, J.), entered October 17, 2013, insofar as appealed from, modified to grant defendant partial summary judgment dismissing the portion of the claims seeking reimbursement for acupuncture services rendered to the assignor; as modified, order affirmed, with $10 costs to defendant, and the matter remanded for further proceedings in accordance herewith.

Defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s no-fault claims for acupuncture treatment rendered to plaintiff’s assignor, by submitting the independent medical examination [IME] report of its examining acupuncturist which set forth a sufficient factual basis and medical rationale for the conclusion that no further acupuncture treatment was medically necessary (see V.S. Care Acupuncture PC v MVAIC, 47 Misc 3d 126[A], 2015 NY Slip Op 50350[U] [App Term, 1st Dept]). Plaintiff’s opposing submissions, consisting of an attorney’s affirmation and the report of its examining doctor, which, as plaintiff concedes on appeal, did not mention, much less address the medical necessity of the acupuncture services rendered, was insufficient to raise a triable issue (see Munoz v Hollingsworth, 18 AD3d 278, 279 [2005]; CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [App Term, 1st Dept 2007]). We remand the matter to Civil Court for a determination of the amount of the claims for acupuncture services, since defendant has failed to establish such amount in its motion papers.

We sustain so much of the order under review as denied defendant’s motion for summary judgment dismissing plaintiff’s remaining no-fault claims, since the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the medical services underlying these claims.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: June 12, 2015

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 partial summary judgment on the acupuncture claims because the provider's opposition did not address the acupuncturist's IME, while conflicting expert opinions raised a triable issue on the remaining claims.

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

Cited in this decision

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

V.S. Care Acupuncture PC v MVAIC (2015 NY Slip Op 50350(U)) FollowedMVAIC need not notify a provider of a scheduled IME before relying on the resulting report to deny further treatment.
CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 27526)The provider's attorney affirmation and unsworn medical report failed to rebut the insurer's evidence of lack of medical necessity.

Cited by

A label shows how the later decision treated this one.

Karina K. Acupuncture, P.C. v AIG Centennial Ins. Co. (2016 NY Slip Op 50415(U)) FollowedThe insurer's IME report established that further acupuncture was unnecessary, and the provider offered no competent medical evidence in opposition.

Similar decisions

Utica Acupuncture, P.C. v Interboro Ins. Co. (2013 NY Slip Op 50643(U))The provider failed to rebut the insurer's proof of outstanding verification and lack of medical necessity for acupuncture.
Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51358(U))The insurer's IME report established that further acupuncture treatment was not medically necessary.
Fine Healing Acupuncture, P.C., v Country-Wide Ins. Co. (2011 NY Slip Op 21361)An insurer's medical-necessity denial need not rest on an examination by a practitioner in the treating provider's specialty.
TC Acupuncture, P.C. v Tri-State Consumer Ins. Co. (2016 NY Slip Op 50978(U))The insurer's IME report supported dismissal of later acupuncture claims, but its proof did not justify denying earlier claims outright.
Apple Tree Acupuncture, P.C. v Interboro Ins. Co. (2011 NY Slip Op 52364(U))The insurer's fee-schedule motion relied on a ground absent from its denials, and the provider raised a medical-necessity issue on other claims.