July 8, 2008

Radiology Today, P.C. v GEICO Ins. Co. (2008 NY Slip Op 28259)

https://www.beynensonlaw.com/case-law/radiology-today-p-c-v-geico-ins-co-2008-ny-slip-op-28259/

Court: Appellate Term, Second Department
Decided: July 8, 2008
Citation: 2008 NY Slip Op 28259 · 20 Misc 3d 70
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Distinguished in 1, contrasted (cf., but see) in 2 and followed in 2 later decisions (see Cited by)
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Radiology Today, P.C. v GEICO Ins. Co., 20 Misc 3d 70 (App Term, 2d Dept 2008)

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 failed to raise a medical-necessity issue because its stamped signature lacked proof of the doctor's authorization. The Appellate Term, Second Department, affirmed the judgment awarding the provider partial summary judgment on its first cause of action. Under CPLR 2106, the report was inadmissible because nothing showed that the reviewing doctor placed the electronic facsimile signature on it or directed its placement. The provider properly identified that defect in reply because the report was first submitted in opposition. An affirmation annexed to the insurer's appellate brief could not be considered because it was outside the record; the provider's prima facie showing was unchallenged.

Reported in New York Official Reports at Radiology Today, P.C. v GEICO Ins. Co. (2008 NY Slip Op 28259)

Radiology Today, P.C. v GEICO Ins. Co.

2008 NY Slip Op 28259 [20 Misc 3d 70]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, September 17, 2008

[*1]

Radiology Today, P.C., as Assignee of Lev Kemel, Respondent,
v
GEICO Ins. Co., Appellant.

Supreme Court, Appellate Term, Second Department, July 8, 2008

APPEARANCES OF COUNSEL

Law Offices of Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), for appellant. Ilona Finkelshteyn, Brooklyn, for respondent.

{**20 Misc 3d at 71} OPINION OF THE COURT

Memorandum.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, claiming, based upon two peer review reports, that the medical services provided were not medically necessary. In reply, plaintiff asserted that the peer review reports did not constitute evidence in admissible form since they were not properly affirmed, as the doctors’ signatures were affixed by stamp. Insofar as is relevant to the instant appeal, the court below granted plaintiff partial summary judgment on its first cause of action, finding that the peer review report with respect to the claim in question was not in admissible form because the signature was not affixed in accordance with CPLR 2106. This appeal by defendant ensued.

Since defendant does not challenge plaintiff’s establishment of its prima facie case, we do not pass upon the propriety of the determination of the court below with respect thereto.

In opposition to plaintiff’s motion for summary judgment, defendant was required, in order to raise a triable issue of fact as to medical necessity, to proffer proof in admissible form (see A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]). In its opposing papers, defendant submitted an affirmed peer review report which stated that there was a lack of medical necessity for the medical services provided by plaintiff. In its reply papers, plaintiff asserted that the peer review report upon which [*2]defendant relied was not in admissible form pursuant to CPLR 2106 because it bore a facsimile of the peer reviewer’s signature. Although defendant argues that plaintiff’s contention was improperly raised for the first time in plaintiff’s reply papers, the reply affirmation from plaintiff’s counsel was responsive to defendant’s papers, since defendant first proffered the peer review report in inadmissible form in opposition to plaintiff’s motion and plaintiff was pointing out said defect in form. Inasmuch as defendant concedes that the peer review report bears an electronic stamped facsimile of the doctor’s signature, and there is nothing in the record to indicate that the facsimile signature was placed on the report by the doctor who performed the peer{**20 Misc 3d at 72} review or at his direction, defendant failed to raise a triable issue of fact with respect to the claim at issue (see Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]). Accordingly, the judgment is affirmed.

We note that the affirmation by Dr. Sharahy, annexed to the appellant’s brief, may not be considered by the court as it is dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.

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 medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)

Held the insurer failed to raise a triable issue on medical necessity because its peer review report bore a stamped facsimile signature not shown to have been placed by or at the direction of the reviewer, so it was inadmissible under CPLR 2106.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 109 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co. (2004 NY Slip Op 24194) FollowedAn insurer's timely medical-necessity denial does not replace admissible proof opposing a provider's summary judgment motion.
Vista Surgical Supplies, Inc. v Travelers Ins. Co. (2008 NY Slip Op 03199) FollowedThe insurer's peer review reports were inadmissible because their facsimile signatures lacked evidence of placement or authorization.

Cited by

A label shows how the later decision treated this one.

Jesa Med. Supply, Inc. v GEICO Ins. Co. (2009 NY Slip Op 29386) DistinguishedThe physician's affirmation authenticated the electronic signature on the peer review, supporting the medical-necessity denial.
Quality Health Prods. v Geico Gen. Ins. Co. (2011 NY Slip Op 52299(U)) Contrasted (cf., but see)The insurer's peer review was admissible because its facsimile signature was placed by the reviewing doctor or at the doctor's direction.
Queens Med. Supply, Inc. v Geico Gen. Ins. Co. (2011 NY Slip Op 52284(U)) Contrasted (cf., but see)The peer review report was admissible because its facsimile signature was placed by the reviewing doctor or at the doctor's direction.
Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U)) FollowedThe insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.
Millennium Radiology, P.C. v New York Cent. Mut. Fire Ins. Co.(2009 NY Slip Op 50877(U)) FollowedThe insurer's peer review raised a medical-necessity issue but did not establish entitlement to summary judgment on the MRI claims.
All Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 50138(U))The insurer's stipulated peer review proved lack of medical necessity at trial without live expert testimony on this record.

Similar decisions

Richmond Radiology, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52210(U))The insurer's affirmed peer review raised a triable issue of medical necessity despite the provider's challenge to the information reviewed.
Radiology Today, P.C. v Mercury Ins. Co. (2012 NY Slip Op 50148(U))The provider's owner's affirmation was improper under CPLR 2106 and failed to rebut the insurer's medical-necessity peer review.
Complete Radiology, P.C. v GEICO Ins. Co. (2010 NY Slip Op 52158(U))The insurer's affirmed peer review established lack of medical necessity, and the provider did not rebut that showing.
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.
Right Aid Diagnostic Medicine, P.C. v Geico Ins. Co. (2009 NY Slip Op 52122(U))The insurer's affirmed peer review raised a triable issue concerning the medical necessity of the MRIs. The provider sought summary judgment for assigned no-fault benefits.