January 24, 2012

Radiology Today, P.C. v Mercury Ins. Co. (2012 NY Slip Op 50148(U))

https://www.beynensonlaw.com/case-law/radiology-today-p-c-v-mercury-ins-co-2012-ny-slip-op-50148u/

Court: Appellate Term, Second Department
Decided: January 24, 2012
Citation: 2012 NY Slip Op 50148(U) · 34 Misc 3d 145(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Contrasted (cf., but see) in 2 and followed in 1 later decisions (see Cited by)
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Radiology Today, P.C. v Mercury Ins. Co., 34 Misc 3d 145(A), 2012 NY Slip Op 50148(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 provider's owner's affirmation was improper under CPLR 2106 and failed to rebut the insurer's medical-necessity peer review. The insurer submitted an affirmed report supplying a factual basis and medical rationale for finding the services unnecessary. The provider opposed with an affirmation from a doctor identified in its claim forms as its owner. Because the doctor was a principal of the professional corporation that was a party, the affirmation was inadmissible. Even if considered, it did not meaningfully address the peer review's conclusions. The provider did not challenge the insurer's entitlement to judgment on other grounds. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at Radiology Today, P.C. v Mercury Ins. Co. (2012 NY Slip Op 50148(U))

[*1]

Radiology Today, P.C. v Mercury Ins. Co.

2012 NY Slip Op 50148(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This opinion is uncorrected and will not be published in the printed Official Reports.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: : GOLIA, J.P., WESTON and RIOS, JJ
2010-1805 K C.

Radiology Today, P.C. as Assignee of LUDMILLIA JEAN-FRANCOIS, Respondent,
against
Mercury Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered September 25, 2009. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. The Civil Court found that the sole issue for trial was the medical necessity of the services rendered to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as denied its motion.

In support of its motion, defendant submitted, among other things, an affirmed peer review report, which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the medical services at issue.

In opposition to the motion, plaintiff submitted a doctor’s affirmation and the claim forms, which identified the doctor as plaintiff’s owner. In its reply papers, defendant objected to the affirmation on the ground that it failed to comply with CPLR 2106. Plaintiff’s submission of the doctor’s affirmation was improper because the doctor is a principal of plaintiff professional corporation, which is a party to the action (see CPLR 2106; Slavenburg Corp. v Opus Apparel, 53 NY2d 799 [1981]; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; High Quality Med., P.C. v Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Thus, plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Even if the affirmation of plaintiff’s doctor could properly be considered, plaintiff nevertheless failed to raise an issue of fact, as the doctor’s affirmation did not meaningfully refer to, let alone rebut, the conclusions set forth in defendant’s peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App [*2]Term, 2d, 11th & 13th Jud Dists 2009]).

As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s motion for summary judgment dismissing the complaint is granted (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]).

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: January 24, 2012

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 summary judgment on its sufficient peer review because the owner-doctor's affirmation was inadmissible under CPLR 2106 and in any event did not meaningfully address the peer review.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followedDistinguished or limited

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.

Cited in this decision

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

High Quality Med., P.C. v Mercury Ins. Co. (2010 NY Slip Op 51900(U)) FollowedThe provider's principal's affirmation was inadmissible under CPLR 2106 and failed to rebut the insurer's IME conclusions.
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.
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.

Cited by

A label shows how the later decision treated this one.

Throgs Neck Multicare, P.C. v Mercury Cas. Co. (2016 NY Slip Op 51081(U)) Contrasted (cf., but see)The provider's treating doctor's affirmation raised a triable issue of medical necessity by sufficiently rebutting the insurer's IME report.
Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co. (2014 NY Slip Op 51810(U)) Contrasted (cf., but see)The insurer's challenge to the provider's standing based on a missing assignment form was raised for the first time on appeal.
Sayyed DC, P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50311(U)) FollowedThe insurer established its EUO nonappearance defense to six bills, but untimely denials barred that defense to two others.

Similar decisions

Complete Radiology, P.C. v Geico Ins. Co. (2012 NY Slip Op 50752(U))The insurer's affirmed peer reviews supplied a factual basis and medical rationale for finding the services medically unnecessary.
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.
Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co. (2012 NY Slip Op 50394(U))The provider's doctor's affirmation failed to meaningfully address or rebut the insurer's peer review conclusions on medical necessity.
Radiology Today, P.C. v Progressive Ins. Co. (2011 NY Slip Op 51724(U))The insurer's expert should have been permitted to testify although that expert did not prepare the peer review underlying the denial.
Manhattan Med. Imaging, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51541(U))The insurer's unrebutted peer review supplied a factual basis and medical rationale establishing lack of medical necessity.