March 17, 2009

PLP Acupuncture, P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 50491(U))

https://www.beynensonlaw.com/case-law/plp-acupuncture-p-c-v-progressive-cas-ins-co-2009-ny-slip-op50491u/

Court: Appellate Term, Second Department
Decided: March 17, 2009
Citation: 2009 NY Slip Op 50491(U) · 22 Misc 3d 142(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 4 later decisions (see Cited by)
Issues: Medical necessity Timeliness and preclusion
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142(A), 2009 NY Slip Op 50491(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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 review report and acupuncturist's affidavit established lack of medical necessity, and the provider failed to rebut that showing. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint. The insurer established timely mailing of its denial through evidence of a standard office procedure designed to ensure proper addressing and mailing. The provider could not challenge the reliability of medical records and reports it had prepared. The peer reviewer's reliance on reports from other providers did not itself make the opinion insufficient: under Wagman v Bradshaw, an expert may rely on out-of-court material when reliability is established. The insurer therefore prevailed on its medical-necessity defense.

Reported in New York Official Reports at PLP Acupuncture, P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 50491(U))

[*1]

PLP Acupuncture, P.C. v Progressive Cas. Ins. Co.

2009 NY Slip Op 50491(U) [22 Misc 3d 142(A)]

Decided on March 17, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON PATTERSON, J.P., GOLIA and STEINHARDT, JJ
2008-166 K C.

PLP Acupuncture, P.C. a/a/o RAMON HERNANDEZ, Appellant,
against
Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered July 9, 2007. The order granted defendant’s motion for summary judgment dismissing the complaint.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment, asserting, inter alia, that the services rendered were not medically necessary. In opposition, plaintiff argued, inter alia, that defendant failed to make a prima facie showing that the services at issue were not medically necessary. The Civil Court granted defendant’s motion for summary judgment dismissing the complaint, holding that defendant established a lack of medical necessity and that defendant’s denial of claim form interposing said defense was timely. The instant appeal by plaintiff ensued.

Contrary to plaintiff’s contention, defendant demonstrated that it timely mailed the denial of claim form at issue based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed (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, 18 [App Term, 2d & 11th Jud Dists 2007]). Defendant’s affirmed peer review report and the affidavit of its peer review acupuncturist established prima facie that there was no medical necessity for the services provided by plaintiff. We note that as some of the medical reports relied upon by defendant’s acupuncturist in his peer review report were prepared by plaintiff, plaintiff could not challenge the reliability of its own medical records and reports (see Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10 [App Term, 1st Dept 2006]; see also Home [*2]Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept 2007]). Furthermore, since it has been held that an “expert witness’s testimony of reliance upon out-of-court material to form an opinion may be received in evidence, provided there is proof of reliability” (Wagman v Bradshaw, 292 AD2d 84, 85-86 [2002]), the fact that defendant’s peer reviewer relied upon medical reports from other medical providers in forming his opinion as to the medical necessity of the service performed does not render the peer review report insufficient to establish a lack of medical necessity. Inasmuch as plaintiff failed to rebut said showing, defendant was entitled to summary judgment dismissing the complaint (see 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]).

Plaintiff’s remaining contention lacks merit.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: March 17, 2009

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 affirmed peer review established lack of medical necessity, since the provider could not challenge the reliability of its own reports and reliance on other providers' reports did not defeat it, and the provider failed to rebut it.

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. 2 decisions in other departments that cite or are cited by this one are on the full map.

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)

Rejected the provider's challenge and held the insurer showed timely mailing of the denial through its standard office practice designed to ensure proper addressing and mailing.

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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.
Cross Cont. Med., P.C. v Allstate Ins. Co. (2006 NY Slip Op 26322) FollowedA provider cannot challenge the reliability of its own principal's treatment records as the source of an insurer's expert opinion.
Home Care Ortho. Med. Supply, Inc. v American Manufactures Mut. Ins. Co. (2007 NY Slip Op 50302(U))An insurer's medical-necessity expert may testify without having performed the original peer review if testimony stays within its grounds.
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.

Cited by

A label shows how the later decision treated this one.

Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (2010 NY Slip Op 50987(U)) FollowedThe insurer established premature claims for unanswered verification and lack of medical necessity for the remaining claims.
Alrof, Inc. v Progressive Ins. Co. (2011 NY Slip Op 21419) FollowedAn insurer need not prove medical records reliable when its expert assumes their contents true in disputing medical necessity.
Atlantic Radiology Imaging, P.C. v GEICO (2013 NY Slip Op 52256(U)) FollowedA substitute peer-review expert may testify at trial within the original report's grounds, even if that report is not admitted.
Parsons Med. Supply, Inc. v Metropolitan Prop. & Cas. Ins. Co. (2011 NY Slip Op 52198(U)) FollowedA peer review report is not inadmissible merely because the reviewer considered medical records prepared by other providers.
Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 52222(U))A peer reviewer may assume the truth of treatment records to assess medical necessity without using those records for a hearsay purpose.
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.
Elmont Open MRI & Diagnostic Radiology, P.C. v Travelers Indem. Co. (2010 NY Slip Op 52223(U))A peer review may assume medical-record facts are true to assess necessity without using the records for a hearsay purpose.
Beal-Medea Prods., Inc. v GEICO Gen. Ins. Co. (2010 NY Slip Op 50800(U))The insurer failed to establish lack of medical necessity because its substitute peer review expert did not prove the records' reliability.

Similar decisions

Al Acupuncture, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51515(U))The insurer's sworn IME report established lack of medical necessity, and the provider did not oppose the cross motion.
BLR Chiropractic, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50882(U))The insurer's peer review report and reviewing chiropractor's affidavit established lack of medical necessity, which the provider failed to rebut.
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.
Lotus Acupuncture PC v Unitrin Advantage Ins. Co. (2016 NY Slip Op 50603(U))The insurer's peer review reports failed to establish lack of medical necessity for the acupuncture services at issue.
Health Needles Acupuncture, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51831(U))A letter merely announcing delay pending an assignor's IME and EUO does not toll the time to pay or deny a no-fault claim.