March 8, 2010

Eastern Star Acupuncture, P.C. v Mercury Ins. Co. (2010 NY Slip Op 50380(U))

https://www.beynensonlaw.com/case-law/eastern-star-acupuncture-p-c-v-mercury-ins-co-2010-ny-slip-op50380u/

Court: Appellate Term, Second Department
Decided: March 8, 2010
Citation: 2010 NY Slip Op 50380(U) · 26 Misc 3d 142(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 4 later decisions (see Cited by)
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142(A), 2010 NY Slip Op 50380(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 supervising acupuncturist failed to meaningfully address or rebut the insurer's IME conclusions on medical necessity. The insurer sought summary judgment dismissing assigned no-fault claims and supported its motion with the examining chiropractor/acupuncturist's affidavit and an affirmed IME report. Those submissions established lack of medical necessity prima facie for the two claims at issue on appeal. The provider's opposing affirmation did not raise a triable issue, despite the Civil Court's finding that medical necessity remained for trial. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing those two claims.

Reported in New York Official Reports at Eastern Star Acupuncture, P.C. v Mercury Ins. Co. (2010 NY Slip Op 50380(U))

[*1]

Eastern Star Acupuncture, P.C. v Mercury Ins. Co.

2010 NY Slip Op 50380(U) [26 Misc 3d 142(A)]

Decided on March 8, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 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
2009-638 K C.

Eastern Star Acupuncture, P.C. a/a/o Alejandro Soriano, Respondent,
against
Mercury Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered February 19, 2009. The order, insofar as appealed from, denied so much of defendant’s motion as sought summary judgment dismissing plaintiff’s complaint with respect to a claim for $55.69 (for services rendered on October 5, 2006) and a claim for $111.38 (for services rendered from November 12 to 16, 2006).

ORDERED that the order, insofar as appealed from, is reversed without costs, and so much of defendant’s motion as sought summary judgment dismissing plaintiff’s complaint with respect to a claim for $55.69 (for services rendered on October 5, 2006) and a claim for $111.38 (for services rendered from November 12 to 16, 2006) is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant’s motion which, insofar as is relevant to this appeal, sought summary judgment dismissing plaintiff’s complaint with respect to a claim for $55.69 (for services rendered on October 5, 2006) and a claim for $111.38 (for services rendered from November 12 to 16, 2006), finding that, with respect thereto, the “sole issue for trial is medical necessity of the bills that were denied based on a[n] independent medical examination.” The instant appeal by defendant ensued.

In support of its motion for summary judgment, defendant submitted an affidavit executed by the chiropractor/acupuncturist who had performed an independent medical examination (IME), as well as an affirmed IME report, establishing, prima facie, a lack of medical necessity for the services at issue. In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact. Contrary to the finding of the Civil Court, the affirmation of plaintiff’s “supervising acupuncturist” did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see 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]; 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, so much of defendant’s motion as sought dismissal of the claims at issue should have been granted (id.; see also A. [*2]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 08, 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 the IME examiner's affidavit and affirmed IME report established lack of medical necessity, and the provider's supervising acupuncturist's affirmation did not meaningfully refer to or rebut the IME conclusions, so the insurer won those claims.

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.

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.

Cited by

A label shows how the later decision treated this one.

Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C. (2016 NY Slip Op 06680) FollowedThe insurer's affirmed peer review supported a default judgment despite lacking an original signature.
Gentle Care Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51290(U)) FollowedThe insurer proved full fee-schedule payment for earlier acupuncture claims and lack of medical necessity for later treatment.
Morris Park Chiropractic, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52017(U)) FollowedThe provider's chiropractor failed to meaningfully address or rebut the IME report finding the disputed services medically unnecessary.
Megacure Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51291(U)) FollowedThe insurer proved full fee-schedule payment for earlier acupuncture services and lack of medical necessity for later services.
Gentle Care Acupuncture, P.C. v Geico Ins. Co. (2010 NY Slip Op 52226(U))An insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist.
All Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2013 NY Slip Op 50252(U))The provider's medical necessity letter and testimony from an unrelated trial failed to rebut the insurer's psychological peer review.
Acupuncture Works, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51654(U))The insurer established full payment under the applicable acupuncture fee schedule and unrebutted lack of medical necessity for other claims.

Similar decisions

Bronze Acupuncture, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51219(U))The insurer established lack of medical necessity, and the treating acupuncturist's unsupported disagreement failed to raise a factual issue.
EMA Acupuncture, P.C. v Geico Ins. Co. (2015 NY Slip Op 51400(U))The provider's acupuncturist affidavit failed to meaningfully address or rebut the insurer's IME findings of no medical necessity.
AJS Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 50208(U))The insurer's chiropractic IME report and supporting affidavit established lack of medical necessity, and the provider offered no rebuttal evidence.
Eastern Star Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51010(U))The insurer established full fee-schedule payment for four acupuncture claims and lack of medical necessity for a fifth.
MIA Acupuncture, P.C. v Geico Ins. Co. (2010 NY Slip Op 51899(U))The insurer established timely denials, proper fee schedule reductions, and lack of medical necessity for the remaining acupuncture services.