March 17, 2014

All Borough Group Med. Supply, Inc. v Unitrin Advantage Ins. Co. (2014 NY Slip Op 50462(U))

https://www.beynensonlaw.com/case-law/all-borough-group-med-supply-inc-v-unitrin-advantage-ins-co-2014-nyslip-op-50462u/

Court: Appellate Term, Second Department
Decided: March 17, 2014
Citation: 2014 NY Slip Op 50462(U) · 43 Misc 3d 126(A)
Posture: Trial
Outcome: Insurer prevailed
Issues: Trial and evidence Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

All Borough Group Med. Supply, Inc. v Unitrin Advantage Ins. Co., 43 Misc 3d 126(A), 2014 NY Slip Op 50462(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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.

Peer review reports are inadmissible to prove lack of medical necessity at trial, but their admission did not require reversal here. A nonjury trial was limited by stipulation to medical necessity, and the Civil Court dismissed the provider's complaint after finding that the insurer's doctor's testimony established that the supplies were unnecessary and that the provider failed to rebut the showing. On appeal, the provider challenged admission of the peer review reports but did not challenge the substance of the expert's testimony. The expert independently reviewed the assignor's medical records and established lack of medical necessity through testimony. The Appellate Term, Second Department, affirmed the judgment in the insurer's favor.

Reported in New York Official Reports at All Borough Group Med. Supply, Inc. v Unitrin Advantage Ins. Co. (2014 NY Slip Op 50462(U))

[*1]

All Borough Group Med. Supply, Inc. v Unitrin Advantage Ins. Co.

2014 NY Slip Op 50462(U) [43 Misc 3d 126(A)]

Decided on March 17, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2824 K C.

All Borough Group Medical Supply, Inc. as Assignee of LENNARD PRESCOD, Appellant,
against
Unitrin Advantage Insurance Company, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered July 26, 2011. The judgment, after a nonjury trial, 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, a nonjury trial was held, limited, pursuant to stipulations, to defendant’s defense of lack of medical necessity. After the trial, the Civil Court found that defendant’s doctor’s testimony had demonstrated that the supplies in question were not medically necessary and that plaintiff had failed to rebut this showing. Subsequently, a judgment was entered dismissing the complaint.

On appeal, plaintiff does not challenge the substance of defendant’s expert witness’s testimony. Instead, plaintiff objects to the admission of the peer review reports. At a trial on the issue of medical necessity, although peer review reports are not admissible to prove the lack of medical necessity, in the case at bar, defendant properly established the lack of medical necessity at trial through the testimony of its expert witness based on his independent review of plaintiff’s assignor’s medical records. Thus, plaintiff’s contention that reversal is warranted because the court admitted the peer review reports into evidence lacks merit (see Alev Med. Supply, Inc. v Government Employees Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d, 11th & 13th Jud Dists 2013] A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014

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 dismissal after trial proper because the insurer's expert established lack of medical necessity from his independent review of the records, so admission of the inadmissible peer review reports did not warrant reversal, and the provider failed to rebut.

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

Alev Med. Supply, Inc. v Government Empls. Ins. Co. (2013 NY Slip Op 51096(U))A peer review report is inadmissible at trial to prove lack of medical necessity; that issue is resolved through medical expert testimony.
A-Quality Med. Supply v GEICO Gen. Ins. Co. (2013 NY Slip Op 23088)An insurer's peer review report is inadmissible at trial to prove lack of medical necessity.

Similar decisions

All Borough Group Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51417(U))The insurer's denial preserved its medical-necessity defense, and an unrebutted affirmed peer review established that the supplies were unnecessary.
Comfort Supply, Inc. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 52289(U))A peer review report is not inadmissible merely because the insurer omits the underlying medical records considered by the reviewer.
Eagle Surgical Supply, Inc. v GEICO Ins. Co. (2013 NY Slip Op 50854(U))A peer review report is inadmissible at trial to prove lack of medical necessity, which must be resolved through medical expert testimony.
Quality Health Prods. v GEICO Gen. Ins. Co. (2012 NY Slip Op 50415(U))The insurer's unrebutted peer review report supplied a factual basis and medical rationale for denying the supplies as medically unnecessary.
Brand Med. Supply, Inc. v Unitrin Advantage Ins. Co. (2020 NY Slip Op 50687(U))An insurer's expert may not be precluded for untimely disclosure without intentional or willful nondisclosure and prejudice.