March 10, 2010

High Quality Med., P.C. v Mercury Ins. Co. (2010 NY Slip Op 50447(U))

https://www.beynensonlaw.com/case-law/high-quality-med-p-c-v-mercury-ins-co-2010-ny-slip-op-50447u/

Court: Appellate Term, Second Department
Decided: March 10, 2010
Citation: 2010 NY Slip Op 50447(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

High Quality Med., P.C. v Mercury Ins. Co., 26 Misc 3d 145(A), 2010 NY Slip Op 50447(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 provider's doctor's affirmation failed to meaningfully address or rebut the insurer's peer review conclusions on medical necessity. The insurer timely denied the claim underlying the second cause of action and supported its cross motion with an affirmed peer review report supplying a factual basis and medical rationale for finding the supplies unnecessary. The Civil Court denied both sides' motions and identified medical necessity as the sole trial issue. The provider's opposing affirmation did not raise a triable factual issue. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the second cause of action.

Reported in New York Official Reports at High Quality Med., P.C. v Mercury Ins. Co. (2010 NY Slip Op 50447(U))

[*1]

High Quality Med., P.C. v Mercury Ins. Co.

2010 NY Slip Op 50447(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2009-86 Q C.

High Quality Medical, P.C. as assignee of Robel Thomy, Respondent,
against
Mercury Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 19, 2008. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action.

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 second cause of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, plaintiff moved for summary judgment on its second cause of action, and defendant cross-moved for summary judgment dismissing said cause of action on the ground of lack of medical necessity. The Civil Court denied plaintiff’s motion and defendant’s cross motion, finding that the sole issue to be determined at trial was medical necessity.

Defendant established that it had timely denied the claim at issue on the ground of lack of medical necessity (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]). In support for its cross motion for summary judgment, defendant submitted, among other things, an affirmed peer review report which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the medical supplies at issue (Exclusive Med. Supply, Inc. v Mercury Ins. Group, 25 Misc 3d 136[A], 2009 NY Slip Op 52273[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]). In opposition to defendant’s cross motion, plaintiff failed to raise a triable issue of fact. Contrary to the finding of the Civil Court, the affirmation of plaintiff’s doctor did not meaningfully refer to, let alone rebut, the conclusions set forth in the 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]; see also Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the branch of defendant’s cross motion which sought summary judgment dismissing the second cause of action should have been granted (id.; see also 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 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

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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, and the provider's doctor's affirmation did not meaningfully refer to or rebut it, so the insurer won summary judgment on that claim.

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

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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 established that it timely denied the claim on medical-necessity grounds, a mailing finding supported by the standard-practice authorities, though the result rested on the peer review.

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.
Exclusive Med. Supply, Inc. v Mercury Ins. Group (2009 NY Slip Op 52273(U))The insurer's timely denials and unrebutted peer reviews established that the medical equipment lacked medical necessity.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U))The insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
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.
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.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

Mutual Care Med. Supply, Inc. v Mercury Cas. Co. (2010 NY Slip Op 51734(U))The insurer's peer-review evidence established lack of medical necessity, and the provider failed to submit a meaningful medical rebuttal.
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.
I.V. Med. Supply, Inc. v Mercury Ins. Group (2010 NY Slip Op 51736(U))The provider's counsel's affirmation did not rebut the insurer's supported peer review finding the medical supplies unnecessary.
Quality Health Prods. v GEICO Gen. Ins. Co. (2012 NY Slip Op 50415(U))The insurer's unrebutted peer review report supplied a factual basis and medical rationale for denying the supplies as medically unnecessary.
Crotona Hgts. Med., P.C. v Mercury Ins. Co. (2010 NY Slip Op 52019(U))A physician who is a principal of the provider corporation may not submit an affirmation under CPLR 2106 in its action.