November 30, 2011

Parsons Med. Supply, Inc. v Metropolitan Prop. & Cas. Ins. Co. (2011 NY Slip Op 52198(U))

https://www.beynensonlaw.com/case-law/parsons-med-supply-inc-v-metropolitan-prop-cas-ins-co-2011-ny-slip-op52198u/

Court: Appellate Term, Second Department
Decided: November 30, 2011
Citation: 2011 NY Slip Op 52198(U) · 33 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity Timeliness and preclusion
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Parsons Med. Supply, Inc. v Metropolitan Prop. & Cas. Ins. Co., 33 Misc 3d 141(A), 2011 NY Slip Op 52198(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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.

A peer review report is not inadmissible merely because the reviewer considered medical records prepared by other providers. The insurer established timely mailing of its denials and submitted an affirmed report supplying a factual basis and medical rationale for finding the supplies unnecessary. The provider could not challenge the reliability of records it had prepared, and its objections to reliance on other providers' records did not defeat admissibility. It failed to rebut the insurer's showing. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint and denial of the provider's cross motion; a separate partial dissent would have denied the insurer's motion because the mailing affidavit did not establish mailroom procedures.

Reported in New York Official Reports at Parsons Med. Supply, Inc. v Metropolitan Prop. & Cas. Ins. Co. (2011 NY Slip Op 52198(U))

[*1]

Parsons Med. Supply, Inc. v Metropolitan Prop. & Cas. Ins. Co.

2011 NY Slip Op 52198(U) [33 Misc 3d 141(A)]

Decided on November 30, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1201 K C.

Parsons Medical Supply, Inc. as Assignee of MARIE JOSEPH, Appellant,
against
Metropolitan Property and Casualty Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), dated January 21, 2010. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion for summary judgment
dismissing the complaint and denying plaintiff’s cross motion for summary judgment.

Defendant demonstrated that it had timely mailed the NF-10 denial of claim forms based upon its standard office practices and procedures (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]). Moreover, defendant’s affirmed peer review report set forth a factual basis and medical rationale for the peer reviewer’s conclusion that there was a lack of medical necessity for the subject medical supplies. Plaintiff challenges defendant’s peer reviewer’s reliance on various medical records. Some of the records were prepared by plaintiff and, accordingly, plaintiff may not challenge the reliability of those records (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10 [App Term, 1st Dept 2006]; see also Home Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept 2007]). In addition, contrary to plaintiff’s assertion, the fact that defendant’s [*2]peer reviewer took into consideration medical records of other providers in formulating his opinion does not render the peer review report inadmissible (see 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]).

Inasmuch as plaintiff failed to rebut defendant’s showing, defendant was entitled to summary judgment dismissing the complaint (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]). We note that plaintiff’s remaining contentions are either unpreserved or lack merit.

Accordingly, the order is affirmed.

Pesce, P.J., and Weston, J., concur.

Rios, J., dissents in part and concurs in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., WESTON and RIOS, JJ.
PARSONS MEDICAL SUPPLY, INC.
as Assignee of MARIE JOSEPH,

Appellant,

-against-

NO. 2010-1201 K C

DECIDED
METROPOLITAN PROPERTY AND
CASUALTY INSURANCE COMPANY, [*3]

Respondent.

Rios, J., dissents in part and concurs in part and votes to modify the order by providing that defendant’s motion for summary judgment is denied in the following memorandum:

The affidavit of defendant’s “litigation representative” in my opinion fails to establish a procedure to ensure the mailing of the denial. The affidavit indicates that the denial envelope is placed in a “pick up” bin, from where it is taken to the mailroom, where postage is affixed, and subsequently mailed. I find the absence of an affidavit from someone familiar with the mailroom procedures is fatal to a claim of timely denial.

Accordingly, I would modify the order by providing that defendant’s motion for summary judgment is denied.

Plaintiff’s cross motion was properly denied. The attorney’s affirmation was insufficient to establish plaintiff’s entitlement to judgment as a matter of law.
Decision Date: November 30, 2011

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 the affirmed peer review set forth a factual basis and medical rationale, its reliance on the provider's own and other providers' records did not make it inadmissible, and the provider failed to 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. 2 decisions in other departments that cite or are cited by this one are on the full map.

Proof of mailing

Open the full map

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 demonstrated timely mailing of the NF-10 denials based on its standard office practices and procedures.

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.
PLP Acupuncture, P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 50491(U)) FollowedThe insurer's peer review report and acupuncturist's affidavit established lack of medical necessity, and the provider failed to rebut that showing.
Cross Cont. Med., P.C. v Allstate Ins. Co. (2006 NY Slip Op 26322) FollowedA provider cannot challenge the reliability of its own principal's treatment records as the source of an insurer's expert opinion.
Home Care Ortho. Med. Supply, Inc. v American Manufactures Mut. Ins. Co. (2007 NY Slip Op 50302(U))An insurer's medical-necessity expert may testify without having performed the original peer review if testimony stays within its grounds.
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.

Similar decisions

Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co. (2013 NY Slip Op 50065(U))The insurer's IME report established that the supplies lacked medical necessity, and the provider submitted no medical rebuttal.
Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2012 NY Slip Op 50149(U))An insurer need not attach the records reviewed by its peer reviewer to establish lack of medical necessity on summary judgment.
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.
MSSA Corp. v Redland Ins. Co. (2011 NY Slip Op 51606(U))The insurer's unrebutted peer review established a factual basis and medical rationale for denying the supplies as medically unnecessary.
Metropolitan Med. Supplies, LLC v Eveready Ins. Co. (2009 NY Slip Op 50586(U))The insurer's supervisor affidavit and affirmed peer review established a timely medical-necessity denial sufficient to defeat summary judgment.