October 27, 2011

Morris Park Chiropractic, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52017(U))

https://www.beynensonlaw.com/case-law/morris-park-chiropractic-p-c-v-american-tr-ins-co-2011-ny-slip-op52017u/

Court: Appellate Term, Second Department
Decided: October 27, 2011
Citation: 2011 NY Slip Op 52017(U) · 33 Misc 3d 135(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Morris Park Chiropractic, P.C. v American Tr. Ins. Co., 33 Misc 3d 135(A), 2011 NY Slip Op 52017(U) (App Term, 2d Dept 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.

The provider's chiropractor failed to meaningfully address or rebut the IME report finding the disputed services medically unnecessary. The insurer appealed denial of the branch of its cross motion seeking summary judgment on a specified group of assigned no-fault claims. Its sworn IME report set out the examining chiropractor's determination that those services lacked medical necessity. The provider's opposing affidavit did not rebut the report's conclusions, and the provider did not dispute the Civil Court's implicit finding under CPLR 3212 (g) that the insurer timely denied the claims. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing those claims.

Reported in New York Official Reports at Morris Park Chiropractic, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52017(U))

[*1]

Morris Park Chiropractic, P.C. v American Tr. Ins. Co.

2011 NY Slip Op 52017(U) [33 Misc 3d 135(A)]

Decided on October 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
.

Morris Park Chiropractic, P.C. as Assignee of IDDRISS MALE, Respondent,
against
American Transit Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 6, 2010. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of the order as denied the branch of its cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006.

In support of its cross motion, defendant submitted, among other things, a sworn independent medical examination (IME) report which set forth the examining chiropractor’s determination that there was a lack of medical necessity for the services at issue. The affidavit from plaintiff’s chiropractor failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]). In light of the foregoing, and the Civil Court’s implicit CPLR 3212 (g) finding that defendant had established that it had timely denied the claims, a finding which plaintiff does not dispute, the branch of defendant’s cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006 should have been 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. [*2]Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006 is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 27, 2011

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

Held the sworn IME report showed lack of necessity, and the provider's chiropractor's affidavit failed to meaningfully refer to or rebut its conclusions, so the insurer won dismissal of the claims for the dates of service at issue.

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.

Cited in this decision

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

Eastern Star Acupuncture, P.C. v Mercury Ins. Co. (2010 NY Slip Op 50380(U)) FollowedThe provider's supervising acupuncturist failed to meaningfully address or rebut the insurer's IME conclusions on 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.
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

BLR Chiropractic, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50882(U))The insurer's peer review report and reviewing chiropractor's affidavit established lack of medical necessity, which the provider failed to rebut.
Innovative Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 52321(U))The insurer established timely denials and lack of medical necessity, and the provider's chiropractor failed to rebut the insurer's showing.
Axis Chiropractic, PLLC v Geico Gen. Ins. Co. (2013 NY Slip Op 50066(U))The provider failed to raise a triable issue against an IME report establishing lack of medical necessity.
Innovative Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 50884(U))The treating doctor's conclusory reaffirmation of medical necessity failed to rebut the insurer's sworn peer review and IME reports.
North Bronx Med. Health Care v NY Cent. Mut. Ins. Co. (2012 NY Slip Op 51658(U))The provider's medical affirmation failed to rebut the insurer's IME and peer review conclusions that the disputed services were unnecessary.