September 22, 2014

Shirom Acupuncture, P.C. v Kemper Independence Ins. Co. (2014 NY Slip Op 51407(U))

https://www.beynensonlaw.com/case-law/shirom-acupuncture-p-c-v-kemper-independence-ins-co-2014-ny-slip-op51407u/

Court: Appellate Term, First Department
Decided: September 22, 2014
Citation: 2014 NY Slip Op 51407(U) · 44 Misc 3d 144(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Shirom Acupuncture, P.C. v Kemper Independence Ins. Co., 44 Misc 3d 144(A), 2014 NY Slip Op 51407(U) (App Term, 1st Dept 2014)

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 peer review of earlier acupuncture services did not establish that the later services sued upon lacked medical necessity. The report rested on perceived vagueness in the provider's initial report and treatment notes and addressed a period preceding the bills at issue. The reviewer did not conclude that the assignor's condition could never warrant further acupuncture, so the report did not justify denial of all future treatment without more. The Appellate Term, First Department, affirmed the order, insofar as appealed from, denying dismissal of the disputed claim and granting the provider summary judgment upon searching the record. Dismissal of the provider's separate remaining claim was not before the court because the provider did not cross-appeal.

Reported in New York Official Reports at Shirom Acupuncture, P.C. v Kemper Independence Ins. Co. (2014 NY Slip Op 51407(U))

[*1]

Shirom Acupuncture, P.C. v Kemper Independence Ins. Co.

2014 NY Slip Op 51407(U) [44 Misc 3d 144(A)]

Decided on September 22, 2014

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570272/14

Shirom Acupuncture, P.C. a/a/o Juana Valdez, Plaintiff-Respondent, –
against
Kemper Independence Insurance Company, Defendant-Appellant.

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered August 9, 2013, as denied, in part, its motion for summary judgment dismissing the complaint, and, upon searching the record, granted summary judgment in favor of plaintiff in the principal sum of $2,175.

Per Curiam.

Order (James E. d’Auguste, J.), entered August 9, 2013, insofar as appealed from, affirmed, with $10 costs.

We agree that the peer review report relied upon by the defendant-insurer was insufficient to establish, as a matter of law, that the acupuncture services underlying plaintiff’s $2,175 no-fault claim lacked medical necessity. The report addressed the medical necessity of acupuncture services rendered to plaintiff’s assignor during a time frame prior to that covered by the bills sued upon here, with defendant’s peer reviewer basing his finding of a lack of medical necessity on narrow grounds, viz., the perceived vagueness of the provider’s initial acupuncture report and treatment notes. In such form, and since defendant’s peer reviewer stopped short of concluding that the assignor’s medical condition could never be shown to warrant further acupuncture treatments, his report cannot be read so broadly as to justify, without more, the denial of any and all future claims for acupuncture services rendered to the assignor. Thus, summary judgment dismissal of this claim was properly withheld.

In the absence of a cross appeal by plaintiff, the propriety of the dismissal of plaintiff’s remaining claim is not properly before us.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: September 22, 2014

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 medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)

Held the peer review insufficient because it addressed an earlier treatment period, rested on narrow documentation grounds, and did not conclude further acupuncture could never be warranted.

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, 22 (this one included) are in the same category.

Cited by

A label shows how the later decision treated this one.

Lotus Acupuncture PC v Unitrin Advantage Ins. Co. (2016 NY Slip Op 50603(U)) FollowedThe insurer's peer review reports failed to establish lack of medical necessity for the acupuncture services at issue.

Similar decisions

Acupuncture Pain Mgt., P.C. v Kemper Cas. Ins. Co. (2015 NY Slip Op 51522(U))An assignor's IME nonappearance permits retroactive denial of all claims, regardless of denial timeliness or different initial denial grounds.
Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2014 NY Slip Op 51766(U))The insurer failed to establish proper mailing of its denials or a sufficient medical basis for denying continued acupuncture treatment.
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.
Healthy Way Acupuncture P.C. v Metropolitan Prop. & Cas. Ins. Co. (2014 NY Slip Op 51127(U))The insurer's claims affidavit and fee-schedule excerpts established the proper reimbursement calculation for the acupuncture services.
SMB Med., PC v Federal Ins. Co. (2015 NY Slip Op 50895(U))The insurer's IME report established that further acupuncture was unnecessary, and the provider's medical report did not address acupuncture.