February 14, 2011

Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50189(U))

https://www.beynensonlaw.com/case-law/bath-med-supply-inc-v-new-york-cent-mut-fire-ins-co-2011-ny-slip-op50189u/

Court: Appellate Term, Second Department
Decided: February 14, 2011
Citation: 2011 NY Slip Op 50189(U) · 30 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 137(A), 2011 NY Slip Op 50189(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 reviews established lack of medical necessity, and the provider failed to offer a meaningful rebuttal. An affirmed physician's report and sworn chiropractor's reports supplied a factual basis and medical rationale for concluding that the supplies were unnecessary. The provider conceded timely denials. Its opposition contained no health-care practitioner's affidavit meaningfully addressing or rebutting the reviewers' conclusions and therefore raised no triable issue. The Appellate Term, Second Department, reversed the order granting the provider's cross motion and denying the insurer's motion, granted the insurer summary judgment dismissing the complaint, and denied the provider's cross motion.

Reported in New York Official Reports at Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50189(U))

[*1]

Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co.

2011 NY Slip Op 50189(U) [30 Misc 3d 137(A)]

Decided on February 14, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2009-2024 K C.

Bath Medical Supply, Inc. as Assignee of LARISA VASILENKO, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered April 1, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed, without costs, defendant’s motion for summary judgment is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the supplies provided were not medically necessary. Plaintiff opposed defendant’s motion and cross-moved for summary judgment. The Civil Court denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment. This appeal by defendant ensued.

In support of its motion for summary judgment, defendant submitted, among other things, an affirmed peer review report from its doctor and sworn peer review reports from its chiropractor, which set forth a factual basis and medical rationale for the conclusion that there was no medical necessity for the medical supplies at issue. As plaintiff conceded that the denials were timely, defendant’s prima facie entitlement to summary judgment was established (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In opposition to defendant’s motion, [*2]plaintiff failed to raise a triable issue of fact as it failed to proffer an affidavit from a health-care practitioner which meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review reports (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]). Accordingly, the Civil Court’s order is reversed, defendant’s motion for summary judgment is granted and plaintiff’s cross motion for summary judgment is denied (see Delta Diagnostic Radiology, P.C., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: February 14, 2011

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 the insurer entitled to summary judgment because its peer review reports set forth a factual basis and medical rationale for lack of medical necessity and the provider offered no practitioner's affidavit meaningfully referring to or rebutting them.

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.

Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
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.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Cited by

A label shows how the later decision treated this one.

Total Equip., LLC v Praetorian Ins. Co. (2011 NY Slip Op 21398) FollowedThe provider established a need for discovery of the no-fault file before opposing the insurer's medical-necessity motion.
Boulevard Multispec Med., P.C. v Tri-State Consumer Ins. Co. (2014 NY Slip Op 24080) FollowedAn IME nonappearance supports denial only if there is some relationship between the missed IME and the treatment at issue.
Total Equip. LLC v State Farm Fire & Cas. Co. (2012 NY Slip Op 22038)A rebuttal report based principally on a nontreating doctor's records review must include those records to raise a medical necessity issue.

Similar decisions

Bath Med. Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 52316(U))The insurer's peer reviews established lack of medical necessity, and the provider failed to justify delaying summary judgment for discovery.
Mutual Care Med. Supply, Inc. v Mercury Cas. Co. (2010 NY Slip Op 51734(U))The insurer's peer-review evidence established lack of medical necessity, and the provider failed to submit a meaningful medical rebuttal.
Queens Med. Supply, Inc. v Tri State Consumer Ins. Co. (2012 NY Slip Op 50414(U))The insurer's unrebutted peer review reports established lack of medical necessity for the supplies at issue.
SI Med. & Surgical Supply, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50054(U))The insurer's peer reviews established lack of medical necessity for the supplies, and the provider did not rebut that showing.
Sky Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50050(U))The insurer's chiropractor/acupuncturist's affidavit and peer review established lack of medical necessity, and the provider did not rebut them.