July 7, 2015

Bronx Mega Care Med, PLLC v Federal Ins. Co. (2015 NY Slip Op 51060(U))

https://www.beynensonlaw.com/case-law/bronx-mega-care-med-pllc-v-federal-ins-co-2015-ny-slip-op-51060u/

Court: Appellate Term, Second Department
Decided: July 7, 2015
Citation: 2015 NY Slip Op 51060(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Bronx Mega Care Med, PLLC v Federal Ins. Co., 2015 NY Slip Op 51060(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2015)

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 doctor's affirmation failed to meaningfully address or rebut the insurer's IME conclusions on medical necessity. In an action for assigned no-fault benefits, the insurer established timely denials through a third-party claims adjuster's description of procedures for generating and mailing denial forms. Its affirmed IME report supplied a factual basis and medical rationale for finding the services unnecessary, establishing prima facie entitlement to summary judgment. The provider's opposing medical affirmation did not raise a triable issue because it failed to engage with those conclusions. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.

Reported in New York Official Reports at Bronx Mega Care Med, PLLC v Federal Ins. Co. (2015 NY Slip Op 51060(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Bronx Mega Care Med, PLLC as Assignee of RAOUL HERNANDEZ, Respondent, July 7, 2015
against
Federal Insurance Company, Appellant.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated January 6, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the District Court which denied defendant’s motion for summary judgment dismissing the complaint. In support of its motion, defendant

submitted an affidavit by a third-party claims adjuster, who described her office’s procedure for generating and mailing denial of claim forms for defendant, and established that the NF-10 forms which denied the claims at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]). Defendant also proffered an affirmed medical report by the doctor who had performed an independent medical examination (IME) on defendant’s behalf, which report set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services rendered (see Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 29 Misc 3d 139[A], 2010 NY Slip Op 52062[U] [App Term, 9th & 10th Jud Dists 2010]). Consequently, defendant established its prima facie entitlement to summary judgment (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]).

In opposition, plaintiff failed to submit medical evidence sufficient to raise a triable issue of fact as to medical necessity (see e.g. Amato v State Farm Ins. Co., 40 Misc 3d 129[A], 2013 NY Slip Op 51113[U] [App Term, 9th & 10th Jud Dists 2013]). Contrary to the determination of the District Court, the opposing affirmation of plaintiff’s doctor failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (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]). Consequently, defendant’s motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc [*2]3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Iannacci, J.P., Marano and Garguilo, JJ., concur.

Decision Date: July 07, 2015

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.

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

Granted the insurer summary judgment because its affirmed IME report gave a factual basis and medical rationale, and the provider's doctor's affirmation failed to meaningfully refer to or rebut the IME conclusions.

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.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the third-party claims adjuster's affidavit describing her office's procedure for generating and mailing denials established that the denials were timely mailed.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

Cited in this decision

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

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins.Co. (2009 NY Slip Op 50242(U)) FollowedThe insurer's cross motion for summary judgment on IME nonappearance was upheld upon sufficient proof of mailing of the requests.
Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 52062(U)) FollowedThe insurer's chiropractor supplied a sufficient medical rationale and factual basis for finding the services medically unnecessary.
Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co. (2010 NY Slip Op 50829(U)) FollowedThe insurer's affirmed peer reviews raised a triable issue of medical necessity and defeated the provider's summary judgment motion.
Amato v State Farm Ins. Co. (2013 NY Slip Op 51113(U))The insurer's IME testimony established lack of medical necessity, and the provider offered no evidence that later treatment was necessary.
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 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.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U)) FollowedThe 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)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Cited by

Throgs Neck Multicare, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51756(U))The provider's medical affirmation failed to rebut the IME report and raised no triable issue of medical necessity.

Similar decisions

North Bronx Med. Health Care v NY Cent. Mut. Ins. Co. (2012 NY Slip Op 51658(U))The provider's medical affirmation failed to rebut the insurer's IME and peer review conclusions that the disputed services were unnecessary.
Bronx Park Med., P.C. v Clarendon Natl. Ins. Co. (2014 NY Slip Op 51832(U))The insurer's unrebutted peer review established a factual basis and medical rationale for denying the services as medically unnecessary.
New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50419(U))The provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's cross motion for summary judgment.
Brownsville Advance Med., P.C. v Kemper Independence Ins. Co. (2012 NY Slip Op 51629(U))The insurer's IME report established lack of medical necessity, and the provider offered no opposing sworn evidence from a medical professional.
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.