October 7, 2013

AP Diagnostic Med., PC v Chubb Indem. Ins. Co. (2013 NY Slip Op 51647(U))

https://www.beynensonlaw.com/case-law/ap-diagnostic-med-pc-v-chubb-indem-ins-co-2013-ny-slip-op51647u/

Court: Appellate Term, First Department
Decided: October 7, 2013
Citation: 2013 NY Slip Op 51647(U) · 41 Misc 3d 126(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

AP Diagnostic Med., PC v Chubb Indem. Ins. Co., 41 Misc 3d 126(A), 2013 NY Slip Op 51647(U) (App Term, 1st Dept 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 affidavit raised a triable issue whether a cervical MRI was necessary to rule out disc herniations. In this action for assigned first-party no-fault benefits, the insurer made a prima facie showing that the MRI testing lacked medical necessity. The provider's opposing affidavit detailed the assignor's pain complaints and restricted cervical range of motion and explained why the MRI was needed. That submission sufficed to create a factual dispute concerning medical necessity. The Appellate Term, First Department, therefore affirmed the order denying the insurer's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at AP Diagnostic Med., PC v Chubb Indem. Ins. Co. (2013 NY Slip Op 51647(U))

[*1]

AP Diagnostic Med., PC v Chubb Indem. Ins. Co.

2013 NY Slip Op 51647(U) [41 Misc 3d 126(A)]

Decided on October 7, 2013

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 7, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570292/13.

AP Diagnostic Medical, PC, a/a/o Ivan Aybar, Plaintiff-Respondent,
against
Chubb Indemnity Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered September 13, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered September 13, 2012, affirmed, with $10 costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. While the defendant-insurer made a prima facie showing that the MRI testing here at issue was not medically necessary, plaintiff’s opposing submission was sufficient to raise a triable issue of fact. The medical affidavit submitted by plaintiff – which detailed the assignor’s complaints of pain and the restricted range of motion of his cervical spine, and opined that the MRI was necessary to rule out disc herniations in the cervical spine – was sufficient to raise a triable issue as to medical necessity (see generally Lee v McQueens, 60 AD3d 914 [2009]; cf. CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 07, 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: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)

Although the insurer made a prima facie showing that the MRI was unnecessary, the provider's medical affidavit detailing complaints and restricted range of motion and explaining the MRI's purpose raised a triable issue, so summary judgment was denied.

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

Of the 72 decisions on this question in the First Department courts and the Court of Appeals, 10 (this one included) are in the same category.

Cited in this decision

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

CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 27526) Contrasted (cf., but see)The provider's attorney affirmation and unsworn medical report failed to rebut the insurer's evidence of lack of 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

American Chiropractic Care, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50346(U))The provider's treating chiropractor's sworn letter raised a factual issue on medical necessity despite the insurer's peer review.
Hunt City Chiropractic, LLP v Chubb Indem. Ins. Co. (2013 NY Slip Op 51679(U))The parties' conflicting medical expert opinions raised a triable issue concerning the necessity of chiropractic services.
Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 50102(U))The provider's opposition lacked medical evidence or other competent proof to rebut the insurer's medical-necessity showing.
Medical Assoc., P.C. v Unitrin Advantage Ins. Co. (2013 NY Slip Op 50757(U))The provider's medical affirmations raised factual issues concerning MRI necessity, requiring denial of both sides' summary judgment requests.
Comprehensive MRI of N.Y., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50128(U))Conflicting medical expert opinions raised a triable issue of fact concerning the medical necessity of the provider's services.