November 26, 2010

Pomona Med. Diagnostics, P.C. v GEICO Ins. Co. (2010 NY Slip Op 52059(U))

https://www.beynensonlaw.com/case-law/pomona-med-diagnostics-p-c-v-geico-ins-co-2010-ny-slip-op52059u/

Court: Appellate Term, Second Department
Decided: November 26, 2010
Citation: 2010 NY Slip Op 52059(U) · 29 Misc 3d 139(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Pomona Med. Diagnostics, P.C. v GEICO Ins. Co., 29 Misc 3d 139(A), 2010 NY Slip Op 52059(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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 insurer's peer reviews established lack of medical necessity, and the claimed rebuttal letter was absent from the record. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion dismissing the assigned no-fault complaint. Affirmed reports from a neurologist and an internist supplied factual bases and medical rationales for finding the services unnecessary. The provider did not oppose the cross motion. Although it asserted on appeal that a medical-necessity letter rebutted one report, Civil Court's order indicated no opposition was considered, and the record contained no letter. The undisputed CPLR 3212 (g) finding that denials were timely and valid, together with the unrebutted reports, supported dismissal.

Reported in New York Official Reports at Pomona Med. Diagnostics, P.C. v GEICO Ins. Co. (2010 NY Slip Op 52059(U))

[*1]

Pomona Med. Diagnostics, P.C. v GEICO Ins. Co.

2010 NY Slip Op 52059(U) [29 Misc 3d 139(A)]

Decided on November 26, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : RIOS, J.P., PESCE and GOLIA, JJ
2009-1781 Q C.

Pomona Medical Diagnostics, P.C. as Assignee of PEDRO M. VARGAS, Respondent,
against
GEICO Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered March 24, 2009. The order, insofar as appealed from, in effect denied defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that there was a lack of medical necessity for the services rendered. Plaintiff did not oppose defendant’s cross motion. Insofar as is relevant to this appeal, the Civil Court found that defendant had established that it mailed timely and valid denials,” and that the sole issue to be determined at trial was the medical necessity of the medical services at issue. Defendant appeals from so much of the order as, in effect, denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, the affirmed peer review reports of a neurologist and a doctor of internal medicine, both of which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the medical services at issue. Defendant’s showing that such services were not medically necessary was unrebutted by plaintiff. While plaintiff asserts on appeal that a letter of medical necessity by Dr. Ronald DiScenza was submitted by plaintiff in rebuttal to one of the peer review reports and was sufficient to raise a triable issue of fact, the order appealed from indicates that the Civil Court did not consider any opposition to the cross motion and there is no such letter in the record.

In light of the foregoing, and the Civil Court’s CPLR 3212 (g) finding that defendant “established that it mailed timely and valid denials,” a finding which plaintiff does not dispute on appeal, defendant’s cross motion for summary judgment dismissing the complaint 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 [*2]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]).

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 26, 2010

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 two affirmed peer review reports with a factual basis and medical rationale established lack of medical necessity; the provider did not oppose, and its claimed rebuttal letter was not in the record or considered below.

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.

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

Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co. (2013 NY Slip Op 52004(U))The insurer's unrebutted sworn peer review established that the services lacked medical necessity.
Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co. (2013 NY Slip Op 52003(U))The insurer's unrebutted sworn peer review established lack of medical necessity for the billed services.
Bronx Park Med., P.C. v Clarendon Natl. Ins. Co. (2014 NY Slip Op 51832(U))The insurer's unrebutted peer review established a factual basis and medical rationale for denying the services as medically unnecessary.
Manhattan Med. Imaging, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51737(U))The insurer's timely denial and supported peer review raised a triable issue of medical necessity, defeating provider summary judgment.
High Quality Med., P.C. v GEICO Ins. Co. (2011 NY Slip Op 52373(U))The insurer's peer review and IME reports established lack of medical necessity, and the provider's medical affidavit failed to rebut them.