June 28, 2012

Richmond Radiology, P.C. v State Farm Ins. Co. (2012 NY Slip Op 51293(U))

https://www.beynensonlaw.com/case-law/richmond-radiology-p-c-v-state-farm-ins-co-2012-ny-slip-op51293u/

Court: Appellate Term, Second Department
Decided: June 28, 2012
Citation: 2012 NY Slip Op 51293(U) · 36 Misc 3d 131(A)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Richmond Radiology, P.C. v State Farm Ins. Co., 36 Misc 3d 131(A), 2012 NY Slip Op 51293(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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 treating chiropractor's affirmed letter raised a medical-necessity issue, and the insurer waived its objection to the letter's form. The insurer's two sworn peer review reports supplied a factual basis and medical rationale for its lack-of-medical-necessity defense. The provider's letter nevertheless created a factual question. The insurer's appellate objection that the letter was affirmed rather than sworn was waived because it had not raised that objection in the Civil Court. The Appellate Term, Second Department, reversed the judgment dismissing the complaint, vacated the portion of the order granting the insurer's summary judgment cross motion, and denied that cross motion. Denial of the provider's summary judgment motion remained in place.

Reported in New York Official Reports at Richmond Radiology, P.C. v State Farm Ins. Co. (2012 NY Slip Op 51293(U))

[*1]

Richmond Radiology, P.C. v State Farm Ins. Co.

2012 NY Slip Op 51293(U) [36 Misc 3d 131(A)]

Decided on June 28, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2012

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

PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ
2010-3169 Q C.

Richmond Radiology, P.C. as Assignee of JOSEPH SANTANA, Appellant, —
against
State Farm Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered October 21, 2010, deemed from a judgment of the same court entered October 29, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the order entered October 21, 2010 denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, so much of the order entered October 21, 2010 as granted defendant’s cross motion for summary judgment
dismissing the complaint is vacated, and defendant’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

In support of its cross motion for summary judgment, defendant established that it had [*2]timely denied the claims at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground of lack of medical necessity. Moreover, defendant submitted two sworn peer review reports which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue. However, in support of its motion for summary judgment, plaintiff submitted an affirmed letter of medical necessity from the treating chiropractor, which demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, defendant’s cross motion should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]). We note that defendant’s objection on appeal to the fact that plaintiff’s submission was affirmed, not sworn, was waived, as defendant failed to raise that objection in the Civil Court (see Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 29 Misc 3d 137[A], 2010 NY Slip Op 52022[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the judgment is reversed, so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated, and defendant’s cross motion for summary judgment is denied.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012

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: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)

Held that although the insurer's two sworn peer reviews set forth a factual basis and medical rationale, the treating chiropractor's affirmed letter of medical necessity raised a triable issue, so the insurer's cross motion should have been denied.

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

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the insurer established that it timely denied the claims on lack-of-medical-necessity grounds, a finding on its mailing proof, though the result turned on the provider's medical-necessity rebuttal.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

Cited in this decision

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

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Quality Psychological Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50601(U)) FollowedThe insurer's timely denial and peer review report supported its defense, but the provider raised a medical-necessity fact issue.
Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50441(U)) FollowedThe provider's physician affidavit raised a triable issue of medical necessity sufficient to defeat the insurer's cross motion for summary judgment.
Delta Diagnostic Radiology, P.C. v Interboro Ins. Co. (2010 NY Slip Op 52022(U)) FollowedThe provider waived the defect in a chiropractor's affirmed peer review by failing to object in Civil Court.
Continental Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50234(U)) FollowedThe provider waived its objection to the chiropractor's affirmed IME report by failing to raise the defect in Civil Court.

Similar decisions

Richmond Radiology, P.C. v Travelers Ins. Co. (2010 NY Slip Op 51964(U))The insurer's peer review supplied a factual basis and medical rationale for finding the assignor's testing medically unnecessary.
Complete Radiology, P.C. v GEICO Ins. Co. (2012 NY Slip Op 50419(U))The treating physician's affirmed letter raised a triable issue of medical necessity and defeated the insurer's cross motion for summary judgment.
Medical Assoc., P.C. v Interboro Ins. Co. (2012 NY Slip Op 50392(U))The provider's unsworn medical report failed to defeat the insurer's supported motion for summary judgment on lack of medical necessity.
Richmond Pain Mgt., P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 52015(U))The insurer's sworn peer review established lack of medical necessity for testing, and the practitioner's affidavit did not rebut it.
Radiology Today, P.C. v Mercury Ins. Co. (2010 NY Slip Op 52020(U))The provider's doctor's affirmation failed to rebut the peer reviews and did not warrant changing the summary judgment result on reargument.