January 24, 2012

Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2012 NY Slip Op 50149(U))

https://www.beynensonlaw.com/case-law/ortho-med-surgical-supply-inc-v-progressive-cas-ins-co-2012-ny-slip-op50149u/

Court: Appellate Term, Second Department
Decided: January 24, 2012
Citation: 2012 NY Slip Op 50149(U) · 34 Misc 3d 145(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity Discovery and procedure
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145(A), 2012 NY Slip Op 50149(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.

An insurer need not attach the records reviewed by its peer reviewer to establish lack of medical necessity on summary judgment. The insurer timely denied the medical-supply claim at issue on appeal and submitted an affirmed peer review with a factual basis and medical rationale. The provider's assertion that it lacked underlying documents did not demonstrate a need for discovery to establish a triable issue under CPLR 3212 (f). Its opposition consisted only of counsel's affirmation, without a practitioner's affidavit rebutting the review. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted summary judgment dismissing the portion of the complaint seeking payment of that claim.

Reported in New York Official Reports at Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2012 NY Slip Op 50149(U))

[*1]

Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co.

2012 NY Slip Op 50149(U) [34 Misc 3d 145(A)]

Decided on January 24, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 24, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2010-1957 K C.

Ortho-Med Surgical Supply, Inc. as Assignee of KENNY INGRAM, Respondent,
against
Progressive Casualty Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 13, 2009. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $498.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $498 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals as limited by the brief from so much of an order as denied the branch of its motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s claim for $498.

Defendant established that it had timely denied the claim for $498 (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. In support of its motion for summary judgment, defendant submitted, among other things, 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 the medical supplies at issue. Contrary to the determination of the Civil Court, defendant was not required to annex to its motion papers copies of the medical records which were reviewed by defendant’s peer reviewer (see Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52222[U] [App Term, 9th & 10th Jud Dists 2010]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant established its prima facie entitlement to summary judgment (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]; [*2]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]).

Although plaintiff stated that it was not in possession of all the information and documents relied upon by defendant’s peer reviewer, and that these documents were needed in order to oppose defendant’s motion (see CPLR 3212 [f]), plaintiff “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

In opposition, plaintiff submitted only an affirmation from its counsel and failed to proffer an affidavit from a health care practitioner which meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review report (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]). Accordingly, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $498 should have been granted.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: January 24, 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

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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 the affirmed peer review established lack of medical necessity without annexing the reviewed records, and the provider's counsel's affirmation, with no practitioner's affidavit and no showing that discovery was needed, did not rebut it.

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.

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 $498 claim on the ground of lack of medical necessity.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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.
Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 52222(U)) FollowedA peer reviewer may assume the truth of treatment records to assess medical necessity without using those records for a hearsay purpose.
Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (2010 NY Slip Op 50987(U)) FollowedThe insurer established premature claims for unanswered verification and lack of medical necessity for the remaining claims.
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.
Delta Diagnostic Radiology, P.C. v Interboro Ins. Co. (2009 NY Slip Op 52222(U)) FollowedThe insurer waived its late-claim defense by failing to advise the provider that reasonable justification could excuse late submission.
Gz Med. & Diagnostic, P.C. v Mercury Ins. Co. (2010 NY Slip Op 50491(U))The provider failed to rebut the insurer's peer review report or show that discovery was needed to oppose partial summary judgment.
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.

Cited by

A label shows how the later decision treated this one.

Longevity Med. Supply, Inc. v MVAIC (2021 NY Slip Op 50440(U)) FollowedThe provider's mailing affidavit raised a factual issue as to timely submission of the claims in its second through fifth causes of action.

Similar decisions

Comfort Supply, Inc. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 52289(U))A peer review report is not inadmissible merely because the insurer omits the underlying medical records considered by the reviewer.
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.
Neomy Med., P.C. v Auto One Ins. Co. (2010 NY Slip Op 51727(U))The insurer's timely denial and supported peer review raised a medical necessity issue defeating summary judgment on the appealed claim.
Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2012 NY Slip Op 50151(U))The insurer's chiropractic peer reviews were not in admissible form and failed to support summary judgment on medical necessity.
Active Imaging, P.C. v Progressive Northeastern Ins. Co. (2010 NY Slip Op 51842(U))An insurer need not annex the third-party records reviewed by its peer reviewer as part of its prima facie summary judgment showing.