October 26, 2017

Cappello v Global Liberty Ins. Co. of N.Y. (2017 NY Slip Op 51415(U))

https://www.beynensonlaw.com/case-law/cappello-v-global-liberty-ins-co-of-n-y-2017-ny-slip-op-51415u/

Court: Appellate Term, First Department
Decided: October 26, 2017
Citation: 2017 NY Slip Op 51415(U)
Posture: Trial
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Cappello v Global Liberty Ins. Co. of N.Y., 2017 NY Slip Op 51415(U) (App Term, 1st Dept 2017)

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 unrebutted peer review testimony established that electromyography and nerve conduction testing lacked medical necessity. The parties limited the nonjury trial to medical necessity and stipulated to the peer review doctor's expertise and admission of the report. The doctor explained that no diagnostic dilemma warranted testing because the assignor was not neurologically deteriorating and was responding to chiropractic treatment. The testimony, expressly found credible, supplied a factual basis and medical rationale for the defense, shifting the burden to the provider to present evidence of medical necessity. The provider called no rebuttal witnesses. The Appellate Term, First Department, reversed the provider's judgment and directed judgment for the insurer dismissing the complaint.

Reported in New York Official Reports at Cappello v Global Liberty Ins. Co. of N.Y. (2017 NY Slip Op 51415(U))

Renato M. Cappello, DC, a/a/o Fritzner Albert, Plaintiff-Respondent,
against
Global Liberty Insurance Company of New York, Defendant-Appellant.

Defendant appeals from a judgment of the Civil Court of the City of New York, Bronx County (Shawn T. Kelly, J.), entered August 17, 2016 after a nonjury trial, in favor of plaintiff in the sum of $2,126.66.

Per Curiam.

Judgment (Shawn T. Kelly, J.), entered August 17, 2016, reversed, with $30 costs, and judgment directed in favor of defendant dismissing the complaint.

In this action by a provider to recover assigned first- party no-fault benefits, the parties stipulated that the only issue for trial would be whether the services rendered to plaintiff’s assignor on April 12, 2011 were medically necessary. Plaintiff also stipulated to the expertise of Dr. Vincent Notabartolo, defendant’s peer review doctor.

At trial, Dr. Notabartolo testified that in his opinion the services provided by plaintiff, specifically, electromyography and nerve conduction velocity diagnostic testing, were not medically necessary because there was no indication of a “diagnostic dilemma” that would warrant such testing. The witness explained that the assignor was not neurologically deteriorating and was responding to chiropractic treatment. Dr. Notabartolo’s peer review report reaching the same conclusion was also stipulated into evidence.

Dr. Notabartolo’s testimony, which the court expressly found credible, demonstrated a factual basis and a medical rationale for his determination that there was no medical necessity for the services at issue here (see New Horizon Surgical Ctr., L.L.C. v Allstate Ins. Co., 52 Misc 3d 139[A], 2016 NY Slip Op 51125[U] [App Term, 2d, 11th and 13th Jud Dists 2016]). Thus, the burden shifted to plaintiff to present his own evidence of medical necessity (see West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2nd and 11th Jud Dists 2006]). Plaintiff, however, called no witnesses to rebut defendant’s evidence. In these circumstances, plaintiff was not entitled to judgment in its favor (see All Is. [*2]Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 33 Misc 3d 142[A], 2011 NY Slip Op 52227[U] [App Term, 9th and 10th Jud Dists 2011]; Specialty Surgical Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th and 10th Jud Dists 2010]). Accordingly, we reverse and direct entry of judgment in favor of defendant dismissing the complaint.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 26, 2017

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

Directed judgment for the insurer because its credited peer reviewer's testimony gave a factual basis and medical rationale for finding the EMG/NCV testing unnecessary, and the provider called no rebuttal witnesses.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

Of the 73 decisions on this question in the First Department courts and the Court of Appeals, 29 (this one included) are in the same category. 4 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

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

New Horizon Surgical Ctr., L.L.C. v Allstate Ins. Co. (2016 NY Slip Op 51125(U)) FollowedThe insurer's unrebutted chiropractic expert testimony established that the MUA procedure and related facility fee lacked medical necessity.
West Tremont Med. Diagnostic, P.C. v Geico Ins. Co. (2006 NY Slip Op 51871(U)) FollowedA diagnostic provider performing prescribed MRIs remains subject to a lack-of-medical-necessity defense.
All Is. Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 52227(U)) FollowedThe insurer's doctor's testimony and peer review report established at trial that the services lacked medical necessity.
Speciality Surgical Servs. v Travelers Ins. Co. (2010 NY Slip Op 50715(U)) FollowedThe insurer's unrebutted medical testimony and affirmed peer review report established that the services were not medically necessary.

Similar decisions

Omega 18 Inc. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 50235(U))The insurer's affirmed peer review established that the prescribed medical supplies were unnecessary or redundant.
Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of N.Y. (2016 NY Slip Op 51815(U))The insurer's medical-necessity defense failed at trial because its peer-review doctor's testimony was found not credible.
BLR Chiropractic, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50882(U))The insurer's peer review report and reviewing chiropractor's affidavit established lack of medical necessity, which the provider failed to rebut.
Theracare & Wellness, P.T., P.C. v Great N. Ins. Co. (2016 NY Slip Op 51429(U))The insurer's unrebutted IME report established a lack of medical necessity for the treatment at issue.
Jcc Med., P.C. v Hereford Ins. Co. (2019 NY Slip Op 51100(U))The insurer rebutted the presumption of medical necessity, and the provider failed to prove the services were medically necessary.