March 3, 2006
All County Open MRI & Diagn. Radiology P.C. v Travelers Ins. Co. (2006 NY Slip Op 50318(U))
https://www.beynensonlaw.com/case-law/all-county-open-mri-diagn-radiology-p-c-v-travelers-ins-co-2006-ny-slip-op-50318u/
- Decided
- March 3, 2006
- Citation
- 2006 NY Slip Op 50318(U) · 11 Misc 3d 131(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Contrasted (cf., but see) in 1 and followed in 1 later decisions (see Cited by)
- Legal questions
- Claimant's prima facie case on motions · Lack of medical necessity (see the maps)
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.
Reported in New York Official Reports at All County Open MRI & Diagn. Radiology P.C. v Travelers Ins. Co. (2006 NY Slip Op 50318(U))
| All County Open MRI & Diagn. Radiology P.C. v Travelers Ins. Co. |
| 2006 NY Slip Op 50318(U) [11 Misc 3d 131(A)] |
| Decided on March 3, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ
2005-234 N C.
against
Travelers Insurance Co., Respondent.
Appeal from an order of the District Court of Nassau County, First District (Howard S. Miller, J.), dated October 19, 2004. The order denied plaintiff’s motion for summary judgment without prejudice to renewal upon proper proof of medical necessity.
Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.
In this action to recover first-party no-fault benefits for medical services provided to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law §
5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). Contrary to the motion court’s determination, plaintiff was not required to submit a physician’s affidavit to establish medical necessity as part of its prima facie case, since medical necessity is established in the first instance by proof of submission of the claim form (see Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95 [App Term, 9th & 10th Jud Dists 2004]). Defendant timely denied the claim on the ground of lack of medical necessity based on a peer review report appended to plaintiff’s moving papers, wherein the peer reviewer stated, inter [*2]alia, that “a review of the records reveals no evidence of a thorough physical examination and history having been performed by the referring doctor,” and that “[u]ntil such pertinent information is made available for my review reimbursement cannot be suggested.”
Where an insurer’s denial is based on a peer review, which concludes that there was no medical necessity due to “the lack of sufficient information” upon which the reviewer could make such determination, it fails to set forth an adequate factual basis and medical rationale and is thus deficient (see Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d at 96-97), without a showing that defendant sought to obtain such information by means of a request pursuant to the verification procedures (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]; A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50114[U] [App Term, 2d & 11th Jud Dists]). However, “[w]here . . the [peer review] report clearly indicates that the pertinent physician’s reports and other documentation had been requested and provided for the purpose of conducting a peer review, and the conclusion of lack of medical necessity is based on the peer reviewer’s opinion, in effect, that there was no substantiation in the reports and documents reviewed of medical necessity for the . . . medical treatment provided, the defendant insurer is not obligated to seek further verification . . . and such peer review is sufficient to raise an issue of fact precluding summary judgment in favor of [a] plaintiff [provider]” (Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists]).
In the instant case, the denial of claim form was, in effect, based on the lack of sufficient information, which, in the absence of a showing by defendant that it availed itself of the claim verification procedures for the purpose of conducting the peer review, precludes defendant from asserting the defense of lack of medical necessity (A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50114[U], supra; Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95, supra; cf.
[*3]
Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U], supra).
Accordingly, the order is reversed, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: March 3, 2006
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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case
Held the provider made its prima facie case by proof of submitting the claim and overdue payment, and was not required to submit a physician's affidavit proving medical necessity.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (this one included) are in the same category.
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 peer review, which rested on lack of sufficient information without any verification request, lacked an adequate factual basis and medical rationale, so the defense failed and the provider won summary judgment.
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.
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Damadian Mri In Elmhurst v Liberty Mut. Ins. Co. (2003 NY Slip Op 51700(U))A provider need not submit additional medical-necessity evidence to obtain summary judgment when the insurer is precluded from that defense.
- Park Neurological Servs. P.C. v GEICO Ins. (2004 NY Slip Op 24210) FollowedThe insurer's denial did not set forth a factual basis and medical rationale for lack of medical necessity, precluding its medical-necessity defense.
- A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co. (2005 NY Slip Op 50114(U)) FollowedAn insurer cannot defeat summary judgment with a peer review citing insufficient information without showing it sought verification.
- Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp. (2005 NY Slip Op 50452(U)) Contrasted (cf., but see)An insurer need not seek further verification when a peer review finds no substantiation of equipment's medical necessity in documents obtained for review.
Cited by
A label shows how the later decision treated this one.
- Hempstead Turnpike Open Mri & Imaging v Progressive Ins. Co. (2006 NY Slip Op 51287(U)) Contrasted (cf., but see)The insurer's affirmed peer review raised a triable issue whether a CAT scan was medically necessary after an MRI of the same area.
- Meridian Psychological Servs., PC v Government Empls. Ins. Co. (2014 NY Slip Op 24177) FollowedAn insurer cannot continue to delay payment after receiving a completed but unsigned NF-2 without seeking further verification.
- Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co. (2012 NY Slip Op 50349(U))An insurer's trial expert may testify on medical necessity without having authored the peer review, within the original report's denial basis.
- Complete Orthopedic Supplies, Inc. v State Farm Ins. Co. (2007 NY Slip Op 27192)A fee schedule dispute remained triable because the insurer established neither a proper scheduled fee nor a comparable fee for the goods.
- Amato v State Farm Ins. Co. (2010 NY Slip Op 20431)A timely claim for treatment after an IME cutoff is presumed medically necessary, and the insurer must rebut that presumption.
- AP Orthopedics & Rehabilitation, P.C. v Allstate Ins. Co. (2010 NY Slip Op 20082)An insurer may prove that an injury was not ascertainable within one year of the accident through a claims examiner without medical expert testimony.
Similar decisions
- Elmont Open MRI & Diagnostic Radiology, P.C. v GEICO Ins. Co. (2006 NY Slip Op 51185(U))A medical necessity denial must state the factual basis and medical rationale with sufficient particularity, even when timely issued.
- Elmont Open MRI & Diagnostic Radiology, P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 52061(U))The insurer's affirmed peer review established lack of medical necessity, and the provider failed to raise a triable medical issue.
- 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.
- Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co. (2010 NY Slip Op 50829(U))The insurer's affirmed peer reviews raised a triable issue of medical necessity and defeated the provider's summary judgment motion.
- 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.