Millennium Radiology, P.C. v New York Cent. Mut. Fire Ins. Co.(2009 NY Slip Op 50877(U))

Civil Court of the City of New York, Richmond County

21817/07

Attorney’s for Defendant:

Gullo & Associates

520 86th Street

Brooklyn, New York 11209

Attorney’s for Plaintiff:

Phillips, Krantz & Levi, LLP

14 Avenue T

Brooklyn, New York 11223

Katherine A. Levine, J.

This case calls into question what precisely a peer review report, submitted by an insurance company in support of its denial for lack of medical necessity, must contain in order to defeat a plaintiff’s motion for summary judgment and/or to grant a defendant’s cross motion for summary judgment. As will be explained below, while a peer review report may be sufficient to defeat a plaintiff’s motion for summary judgment it may not be sufficient to warrant granting of summary judgment to the defendant insurer, even when the plaintiff does not submit evidence to rebut the report. This dichotomy, in the context of no-fault insurance, has not been definitively clarified by the higher courts.

Plaintiff Millennium Radiology, P.C, (“plaintiff” or “Millennium”) commenced this action to recover from defendant, New York Central Mutual Fire Insurance Company (“defendant” or “NY Central”), the sum of $1,791.71 for the two MRIs it performed upon its assignor, Adrine Grant (“Grant” or “assignor”). In support of its application for summary judgment, plaintiff contends that the defendant has not submitted competent medical evidence to support its denial of the claim for lack of medical necessity.

Defendant opposed plaintiff’s application and cross-moved for summary judgment on the [*2]grounds that the services provided by plaintiff were not medically necessary. In support of its denial, defendant submitted a copy of a peer review prepared by its chiropractor Albert Claps, D.C. who concluded that there was no justification for the MRIs performed upon the assignor because the referring provider failed to indicate whether the assignor was experiencing “an improvement or degradation with regard to her causally related symptoms” and because the doctor failed to reveal why the MRIs were ordered or how the outcomes of these tests would assist in the treatment of the assignor.

During oral argument, defendant maintained that the complaint should be dismissed because the plaintiff had failed to submit any medical evidence to rebut the peer review report. Plaintiff responded that it was under no duty to offer any evidence in rebuttal and that the conclusion of defendant’s expert regarding the medical necessity of the MRIs created an issue of fact which must be determined at trial.

A plaintiff makes a prima facie case “by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received and that payment of no-fault benefits were was overdue.” A.B. Medical Services, v. Liberty Mutual Ins. Co., 39 AD3d 779, 780 (2d Dept. 2007). See, Ins. Law, §5106(a); 11 NYCRR 65-3.8(c); Nyack Hospital v. Metropolitan Property & Cas. Co., 16 AD3d 564 (2d Dept. 2005); Mary Immaculate Hospital v. Allstate Ins. Co., 5 AD3d 742– 43 (2d Dept. 2004). It is clear that plaintiff has established its prima facie case. The affidavit of plaintiff’s billing manager exhaustively details the record keeping procedures of the business, and clearly sets forth the procedures for the creation and retention of bills, of which she has personal knowledge. See Manhattan Medical v. State Farm Mutual Automobile, 2008 NY Slip Op. 51844(U), 20 Misc 3d 1144(A)(Civil Ct., Richmond Co.2008) citing Second Medical v. Auto One Ins., 20 Misc 3d 291, 294-95 (Civil Ct., Kings Co. 2008). The affidavit further details that the bills at issue were made and kept in the ordinary course of business at the time the services were rendered and sets forth the precise mailing procedure that was followed. Moreover, the billing manager personally mailed the bill and forms.

A presumption of medical necessity attaches to a defendant’s admission of the plaintiff’s timely submission of proper claim forms, and the burden then switches to the defendant to demonstrate the lack of medical necessity. Acupuncture Prime Care, P.C. v. State Farm Mutual Auto Ins., 2007 NY Slip Op. 52273U, 2007 NY Misc. LEXIS 7860 (Dist. Ct., Nassau Co. 12/3/2007); A.B. Medical Services, PLLC v. NY Central Mutual Fire Ins. Co., 7 Misc 3d 1018(A), 801 NYS2d 229 (Civil Ct. Kings. Co. 2005); Citywide Social Work & Psychological Services v. Travelers Indemnity, 3 Misc 3d 608, 609 (Civil Ct., Kings Co. 2004). Defendant thus bears “both the burden of production and the burden of persuasion with respect to the medical necessity of the treatment or testing for which payment is sought.” See, Bajaj v. Progressive Ins. Co., 14 Misc 3d 1202(A) (N.Y.C. Civ. Ct. 2006). Thus, once a plaintiff has proven its prima facie case, the defendant must prove that the test was not medically necessary. Nir. v. Allstate Insurance Co., 7 Misc 3d 544, 546 (Civil Ct, Kings Co. 2005). A defendant may raise a triable issue of fact by submitting a denial of claim form stating that the claim is being denied based on a medical examination or peer review report requested by the insurer. The insurer need not set forth the medical rationale in its denial of claim form. Rather, the insurer need only submit a copy of that report to the applicant or its attorney upon written request. A.B. Medical Services, PLLC v GEICO, 39 AD3d 778, 779 ( 2d Dept. 2007); A B. Medical Services v. Liberty Mutual Ins. Co., 39 AD3d 779 ( 2d Dept. 2007). See, 11 NYCRR 65-3.8(b)(4).

Summary judgment is a “drastic and harsh” remedy and “should be used sparingly.” Utica National Ins. Group v. Providian Medical Services, P.C.,2008 N.Y Slip. Op.52610U, 22 Misc 3d 1107A ( Sup. Ct., Queens Co., 2008). See Epstein v. Scally, 99 AD2d 713, 714 (1st Dept. 1984 ). Summary judgment cannot be resolved by conflicting affidavits. Epstein v. Scally, [*3]supra . To grant summary judgment, it must clearly appear, on the papers alone, ” that no material and triable issue of fact is presented”. Forrest v. Jewish Guild for the Blind, 3 NY3d 295 (2004); Zuckerman v, City of New York, 49 NY2d 557 (1980); Utica Nat’l Ins. Group, supra . The court’s function on a motion for summary judgment is issue finding rather than issue determination. Precision Diagnostic Imaging, P.C., v. Travelers Insurance Co., 8 Misc 3d 435, 436 ( Civil Ct., N.Y Co. 2005), citing Brown v Achy, 9 AD3d 30, 33 n 2 (1st Dept. 2004). Once such proof has been offered, in order for the opposing party to defeat the motion for summary judgment, it must “show facts sufficient to require a trial of any issue of fact.” Inwood Hills Medical P.C. v. Bronx Neurodiagnostics P.C., 3 Misc 3d 1110A, 787 NYS2d 678 (Civil Ct., NY Co., 2004) quoting CLR 3212 (b). See, Alvarez v. Prospect Hospital, 68 NY2d 320 (1986).

To defeat a plaintiff’s motion for summary judgment, the report must be in admissible form; i.e. signed and sworn to. See, Radiology Today v. GEICO, 20 Misc 3d 70

(App. Term, 2d Dept. 2008); A.B. Medical Services PLLC v. Lumbermens Mutual Cas. Co., 4 Misc 3d 86 (App. Term, 2 & 11th Jud. Dists. 2004). Some courts have also held that in additional to being in admissible form, the peer review report or medical examination must raise a triable issue of fact for lack of medical necessity by setting forth “a sufficiently detailed factual basis and medical rationale for the claim’s rejection.” Nir, supra at 546 citing Amaze Medical Supply v. Eagle Ins., 2 Misc 3d 134A, 2004 NY Slip Op. 51701U (App. Term, 2d and 11th Jud. Dists. 2003). Cross bridge Diagnostic Radiology, PC v. Progressive Ins. Co. 2008 NY Slip Op 51761U , 20 Misc 3d 143A (App. Term, 2d Dept. 2008); Delta Diagnostic v. Chubb Insurance Co., 17 Misc 3d 16 (App. Term, 2d Dept. 2007). The quantum of evidence presented in the peer review report need not rise to the level of evidence presented at trial through the peer review doctor to substantiate the peer review report’s conclusion as to lack of medical necessity. Nir, supra at 546-547.

Plaintiff errs in contending that its motion should be granted since the peer review report does not contain competent medical evidence to support a finding of medical necessity, as a party cannot establish its entitlement to judgment “merely by pointing to gaps in the opponent’ s proof.” Falah v. Stop & Shop Companies, Inc., 41 AD3d 638 (2d Dept. 2007). Furthermore, the peer review report is in admissible form and contains a sufficient rationale so as to create an issue of fact concerning medical necessity. While somewhat bare bones, the report does in artfully state that the MRI studies appear to be medically unnecessary because the referring doctor does not indicate whether the claimant experienced improvement or degradation with regard to her causally related symptoms, and there was no indication from the referring doctor why the MRIs were ordered or how the anticipated outcome of the tests would assist with the management of the assignor’s case.

However, while a peer review report may be sufficient to defeat a motion for summary judgment by the plaintiff, at trial, the peer review report must be supported by testimony regarding the “generally accepted medical/professional practice. “Nir, supra at 547 citing CityWide Social Work & Psychological Servs. v. Travelers Indemnity Co., 3 Misc 3d 608, 612 (Civil Ct., Kings Co. 2004). Generally accepted practice “is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling. CityWide, supra at 616. As this court held in H.M. Parekh v. Allstate Ins. Co., Index No. 2041/07, Civil Ct, Richmond County, 3/04/08, at trial a defendant must show by medical evidence “that the treatment or services would be ineffective or that the insurer’s preferred health care treatment or lack of treatment would lead to an equally good outcome.” H.M. Parekh v. Allstate Ins. Co., supra , citing Fifth Ave. Pain Control Center v. Allstate Ins. Co., 196 Misc 2d 801, 807-08 (Civ. Ct. Queens Co. 2003).

The instant peer review report, standing alone, does not rise to this standard and does not establish, as a matter of law, that the services rendered were not medically necessary. As such, this court finds the contents of the report to be insufficient to warrant the granting of defendant’s cross motion, even though the plaintiff failed to submit evidence to rebut the peer review.

Defendant cites a plethora of Appellate Term cases for the proposition that once the defendant insurer rebuts the inference that the services are not medically necessary, the plaintiff must refute this inference in order to create a triable issue of fact. The court first notes that the Appellate Term at times has not ruled that defendant must be awarded summary judgment unless plaintiff refutes the evidence offered by defendant, but only that “such proof may entitled the insurer to summary judgment.” Damadian MRI in Elmhurst v. Liberty Mutual Ins., 2 Misc 3d 128A, 787 NYS2d 919 (App. Term, 2d & 11th Jud. Dists 2004). See A.B. Medical Servs.v. NY Central Mutual Fire Ins., 3 Misc 3d 136A, 787 NYS2d 675 (App. Term 9 & 10th Jud. Dists. 2004)(“summary judgment may, in appropriate circumstances, be awarded to the defendant unless the plaintiff comes forward with admissible proof in reply to create a triable issue of fact). The Appellate Division has not addressed this dichotomy.

Since the report does not contain sufficient evidence to demonstrate the absence of any material issues of fact so as to warrant judgment to defendant (See, e.g.,. Delta Diagnostic v. Chubb, 17 Misc 3d 16, 18 (App. Term 2d Dept. 2007), this case will proceed to trial.

The foregoing constitutes the Decision and Order of the Court.

Dated: April 30, 2009______________________Honorable Katherine A. Levine

Judge, Civil Court