February 11, 2013

Viviane Etienne Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50196(U))

https://www.beynensonlaw.com/case-law/viviane-etienne-med-care-p-c-v-geico-gen-ins-co-2013-ny-slip-op50196u/

Court: Appellate Term, Second Department
Decided: February 11, 2013
Citation: 2013 NY Slip Op 50196(U) · 38 Misc 3d 139(A)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity Fee schedule
Legal questions: Lack of medical necessity · Proving a fee schedule defense (see the maps)

Cite as

Viviane Etienne Med. Care, P.C. v GEICO Gen. Ins. Co., 38 Misc 3d 139(A), 2013 NY Slip Op 50196(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 established lack of medical necessity for several claims but failed to substantiate its fee-schedule defenses. In the provider's action for assigned no-fault benefits, the insurer's affirmed IME reports supplied a factual basis and medical rationale for denying multiple claims, and the provider failed to rebut that showing. An affirmed peer review likewise supported denial of six services in another claim. However, the insurer did not establish improper billing or excessive fees for two claims or the unpaid balance for one service in the peer-reviewed claim. The Appellate Term, Second Department, reversed the dismissal judgment, vacated summary judgment on those two claims and that unpaid balance, and denied those branches of the insurer's cross motion; the medical-necessity dismissals remained undisturbed.

Reported in New York Official Reports at Viviane Etienne Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50196(U))

[*1]

Viviane Etienne Med. Care, P.C. v GEICO Gen. Ins. Co.

2013 NY Slip Op 50196(U) [38 Misc 3d 139(A)]

Decided on February 11, 2013

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 11, 2013

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

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2010-2853 K C.

Viviane Etienne Medical Care, P.C. as Assignee of SILVIANO LOPEZ, Appellant, —
against
Geico General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 10, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered May 7, 2010 dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order entered March 10, 2010 as granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service April 13, 2005 and May 17, 2005, and so much of the claim for date of service April 28, 2005 as sought the unpaid sum of $27.88 is vacated, and those branches of defendant’s cross motion are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s appeal from so much of an order of the Civil Court entered March 10, 2010 as granted defendant’s cross motion for summary judgment dismissing the complaint is deemed to be from a judgment of the same court entered May 7, 2010 dismissing the complaint (see CPLR 5501 [c]). [*2]

In support of its cross motion, defendant submitted affirmed independent medical examination reports, each of which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services provided on May 2, 2005 through May 31, 2005, June 2, 2005 through June 30, 2005, June 14, 2005, July 5, 2005 through July 19, 2005, August 1, 2005 through August 15, 2005, and September 20, 2005. Consequently, defendant established its prima facie entitlement to summary judgment on those claims (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, 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 & 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 & 11th Jud Dists 2007]). Since plaintiff failed to rebut this showing (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon those claims were properly granted.

However, the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service April 13, 2005 and May 17, 2005 should have been denied. In support of its cross motion, defendant failed to proffer sufficient evidence to establish as a matter of law that these claims had been improperly billed or were in excess of the amount permitted by the fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]).

Additionally, a portion of the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon a claim for date of service April 28, 2005 should have been denied. Although defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for six of the services provided on this date, which conclusion plaintiff failed to rebut, one of the services, which had been was billed at a rate of $182.18, and had been partially paid by defendant in the amount of $154.30, had been partially denied since it had allegedly exceeded the maximum allowance under a fee schedule. However, defendant failed to proffer sufficient evidence to establish as a matter of law that the remaining balance of this claim, in the amount of $27.88, was, in fact, in excess of the amount permitted by the applicable fee schedule (see Rogy Med., P.C., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U]).

Accordingly, the judgment is reversed, so much of the order entered March 10, 2010 as granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service April 13, 2005 and May 17, 2005, and so much of the claim for date of service April 28, 2005 as sought the unpaid sum of $27.88 is vacated and those branches of defendant’s cross motion are denied.

Pesce, P.J., Rios and Solomon, JJ., concur. [*3]
Decision Date: February 11, 2013

Legal questions (2)

Questions 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

Held affirmed IME reports and a peer review setting forth a factual basis and medical rationale established lack of medical necessity for most dates of service, and the provider failed to rebut them.

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.

Proving a fee schedule defense

Open the full map

Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Insurer's proof did not establish the excess as a matter of law; question left for trial

Held the insurer failed to proffer sufficient evidence that two claims and a $27.88 balance were improperly billed or exceeded the fee schedule, so its cross motion on those claims was denied.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followed

Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 85 (this one included) are in the same category.

Cited in this decision

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

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.
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.
Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U)) FollowedThe insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.
Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co. (2009 NY Slip Op 00351)Judicially noticed diagnosis codes alone do not establish that treatment was wholly unrelated to an insured automobile accident.

Similar decisions

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 50199(U))The insurer failed to establish timely denial of one claim or its fee schedule defense to another, requiring denial of dismissal as to both.
Compas Med., P.C. v GEICO Ins. Co. (2014 NY Slip Op 51857(U))The insurer proved lack of medical necessity for one claim but failed to establish its payment, late-submission and fee-schedule defenses.
Barakat Med. Care, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50180(U))The provider's medical affidavit failed to rebut the insurer's peer review and IME findings of lack of medical necessity.
Neomy Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 51252(U))The insurer established timely denials and unrebutted defenses of lack of medical necessity and charges exceeding the fee schedule.
Essential Acupuncture Servs., P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51623(U))The insurer established lack of medical necessity for three claims, but failed to conclusively prove its defenses to three others.