February 19, 2013

All Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2013 NY Slip Op 50252(U))

https://www.beynensonlaw.com/case-law/all-boro-psychological-servs-p-c-v-progressive-northeastern-ins-co-2013ny-slip-op-50252u/

Court: Appellate Term, Second Department
Decided: February 19, 2013
Citation: 2013 NY Slip Op 50252(U) · 38 Misc 3d 142(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

All Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 38 Misc 3d 142(A), 2013 NY Slip Op 50252(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 medical necessity letter and testimony from an unrelated trial failed to rebut the insurer's psychological peer review. The provider appealed from summary judgment dismissing its assigned no-fault claims for psychological testing. Its letter did not meaningfully address the insurer's psychologist's conclusions. The prior testimony established only that certain tests had utility in general, whereas the peer review found the tests unnecessary under this case's particular facts. That testimony therefore had no relevance to the report at issue. The Appellate Term, Second Department, affirmed the judgment for the insurer; the provider's remaining contentions lacked merit, were unpreserved, or both.

Reported in New York Official Reports at All Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2013 NY Slip Op 50252(U))

[*1]

All Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co.

2013 NY Slip Op 50252(U) [38 Misc 3d 142(A)]

Decided on February 19, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 19, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-585 K C.

All Boro Psychological Services, P.C. as Assignee of SHIRELL KNIGHT, Appellant, —
against
Progressive Northeastern Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered December 16, 2010, deemed from a judgment of the same court entered February 22, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 16, 2010 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the services rendered lacked medical necessity. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

On appeal, plaintiff argues, among other things, that it raised a triable issue of fact as to the medical necessity of the psychological testing at issue by submitting a letter of medical necessity and the prior trial testimony of a Dr. Franklin Porter. However, the letter of medical necessity did not meaningfully refer to, let alone rebut, the conclusions of defendant’s [*2]psychologist (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 Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and Dr. Porter’s testimony has no relevance to the peer review report at issue in this case. While Dr. Porter testified generally, in an unrelated trial, that certain psychological tests have utility, the peer review report relied upon by defendant in this case concluded that they were not medically necessary under the factual circumstances presented by this case. Plaintiff’s remaining contentions on appeal are without merit and/or unpreserved for appellate review.

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 2013

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

Affirmed dismissal because the provider's letter of medical necessity did not meaningfully refer to the psychologist peer reviewer's conclusions and an expert's general testimony from an unrelated trial about psychological testing was irrelevant to this peer review.

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.
Eastern Star Acupuncture, P.C. v Mercury Ins. Co. (2010 NY Slip Op 50380(U))The provider's supervising acupuncturist failed to meaningfully address or rebut the insurer's IME conclusions on medical necessity.

Cited by

American Tr. Ins. Co. v Right Choice Supply, Inc. (2023 NY Slip Op 23039)A no-fault arbitrator need not apply summary judgment rules requiring a provider's medical evidence to specifically rebut an insurer's peer review.

Similar decisions

Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51057(U))The insurer's peer review reports were inadmissible because they used a psychologist's affirmations rather than sworn statements.
Five Boro Psychological Servs., P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51858(U))The insurer's unrebutted sworn peer review established lack of medical necessity and warranted dismissal of the provider's claim.
Quality Psychological Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50601(U))The insurer's timely denial and peer review report supported its defense, but the provider raised a medical-necessity fact issue.
Prime Psychological Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50585(U))The provider's psychologist's affirmation failed to rebut the insurer's peer review conclusions that the services lacked medical necessity.
All Boro Psychological Servs., P.C. v Hartford Ins. Co. (2012 NY Slip Op 51849(U))The insurer's affidavits established timely mailing of EUO notices and the denial, and the provider's failure to attend either EUO. In this action for assigned no-fault benefits, the provider challenged the insurer's proof supporting summary judgment dismissing the complaint.