March 10, 2010

Advanced Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 50454(U))

https://www.beynensonlaw.com/case-law/advanced-med-p-c-v-geico-ins-co-2010-ny-slip-op-50454u/

Court: Appellate Term, Second Department
Decided: March 10, 2010
Citation: 2010 NY Slip Op 50454(U) · 26 Misc 3d 145(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Advanced Med., P.C. v GEICO Ins. Co., 26 Misc 3d 145(A), 2010 NY Slip Op 50454(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 unrebutted IME evidence established that the services underlying the provider's third and fifth causes of action were unnecessary. The provider moved for summary judgment on assigned no-fault claims, and the insurer cross-moved to dismiss. The insurer submitted the examining doctor's affirmation and IME report, which established lack of medical necessity prima facie. Its affidavit also established timely mailing of the denials through a standard office practice or procedure. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the third and fifth causes of action. The appeal was limited to those claims.

Reported in New York Official Reports at Advanced Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 50454(U))

[*1]

Advanced Med., P.C. v GEICO Ins. Co.

2010 NY Slip Op 50454(U) [26 Misc 3d 145(A)]

Decided on March 10, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 10, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ
2009-661 Q C.

Advanced Medical, P.C. a/a/o Joyce Asiedu, 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 February 10, 2009. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing the third and fifth causes of action.

ORDERED that the order, insofar as appealed from, is reversed without costs and the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s third and fifth causes of action are 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, arguing, among other things, that there was a lack of medical necessity for the services at issue in plaintiff’s third and fifth causes of action, and that plaintiff was not entitled to recover on the claim at issue in plaintiff’s first cause of action based on the Worker’s Compensation Fee Schedule. Defendant appeals, as limited by the brief, from so much of the order as denied the branches of its cross motion seeking summary judgment dismissing plaintiff’s third and fifth causes of action.

The affidavit submitted by defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practice or procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Furthermore, defendant submitted an affirmation by the doctor who performed the independent medical examination as well as a copy of the independent medical examination report. Said [*2]documents established, prima facie, that with respect to the services at issue in plaintiff’s third and fifth causes of action, there was no medical necessity (see A. Khodadadi Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]), which evidence was unrebutted. Accordingly, the branches of defendant’s cross motion seeking summary judgment dismissing said causes of action should have been granted.

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 10, 2010

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 IME doctor's affirmation and report established prima facie that the services in two causes of action were not medically necessary, and the showing was unrebutted, so those claims were dismissed.

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

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's affidavit sufficiently established that the denials were timely mailed under its standard office practice or procedure, a predicate to its medical-necessity defense.

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.

Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
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.
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.
New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50419(U))The provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's cross motion for 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.
Neomy Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 51252(U))The insurer established timely denials and unrebutted defenses of lack of medical necessity and charges exceeding the fee schedule.