March 13, 2007

Channel Chiropractic, P.C. v Country-Wide Ins. Co. (2007 NY Slip Op 01973)

https://www.beynensonlaw.com/case-law/channel-chiropractic-p-c-v-country-wide-ins-co-2007-ny-slip-op-01973/

Court: Appellate Division, First Department
Decided: March 13, 2007
Citation: 2007 NY Slip Op 01973 · 38 AD3d 294
Posture: Motion to dismiss (CPLR 3211)
Outcome: Insurer prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Medical necessity Discovery and procedure

Cite as

Channel Chiropractic, P.C. v Country-Wide Ins. Co., 38 AD3d 294 (1st Dept 2007)

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.

A nurse's peer review denying no-fault benefits for lack of medical necessity is not per se invalid. Such a review may establish admissible medical opinions if the nurse's training, observations, and actual experience supporting those opinions are sufficiently set forth. The providers' complaint and proposed amendment rested on the contrary, defective theory. The Appellate Division, First Department, affirmed dismissal under CPLR 3211 (a) and denial of the providers' cross motion for summary judgment and amendment. The providers' argument that they should be permitted to replead specific benefit claims or the class action was not properly before the court because their cross motion had not sought that relief.

Reported in New York Official Reports at Channel Chiropractic, P.C. v Country-Wide Ins. Co. (2007 NY Slip Op 01973)

Channel Chiropractic, P.C. v Country-Wide Ins. Co.

2007 NY Slip Op 01973 [38 AD3d 294]

March 13, 2007

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, May 9, 2007

Channel Chiropractic, P.C., et al., Appellants,
v
Country-Wide Insurance Company, Respondent.

—[*1] Quadrino & Schwartz, P.C., Garden City (Harold J. Levy of counsel), for appellants.

Thomas Torto, New York, for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered November 9, 2005, which granted defendant’s motion pursuant to CPLR 3211 (a) to dismiss the complaint and denied plaintiffs’ cross motion for summary judgment and to amend the complaint, unanimously affirmed, without costs.

In their cross motion, plaintiffs never sought leave to amend the complaint to plead the essential elements of a cause of action to recover no-fault benefits for specific claims, or to replead the class action. Therefore, their argument for the right to replead is not properly before this Court. In any event, since the complaint and any proposed amendment were based on the same defective legal theory, the court did not err in dismissing the complaint for failure to state a cause of action and denying leave to amend because the “insufficiency or lack of merit is clear and free from doubt” (Noanjo Clothing v L & M Kids Fashion, 207 AD2d 436, 437 [1994]).

The court properly found that nurses’ reviews denying no-fault claims for lack of medical necessity were not per se invalid, since a nurse’s peer review may be competent to establish the admissibility of the medical opinions and conclusions provided that the reviewer’s training, observations and actual experience to render such opinions are sufficiently set forth (see People v Lewis, 16 AD3d 173 [2005], lv denied 4 NY3d 888 [2005]; Patil v Countrywide Ins. Co., 11 Misc3d 130[A], 2006 NY Slip Op 50306[U] [App Term 2006]).

We have considered plaintiffs’ remaining arguments and find them without merit. Concur—Andrias, J.P., Saxe, Sullivan, Gonzalez and McGuire, JJ.

Cited in this decision

Patil v Countrywide Ins. Co. (2006 NY Slip Op 50306(U))The provider failed to establish admissibility of its claim forms through counsel's affirmation or its own affidavit.

Cited by

A label shows how the later decision treated this one.

Countrywide Ins. Co. v 563 Grand Med., P.C. (2008 NY Slip Op 03059) FollowedAn insurer need not state its medical rationale in the prescribed denial form, and a nurse's medical necessity review is not per se invalid.
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.

Similar decisions

Wyckoff Hgts. Med. Ctr. v Government Empls. Ins. Co. (2014 NY Slip Op 01166)An insurer's denial need not include a peer review report or other medical evidence when issued under 11 NYCRR 65-3.8.
Avenue N Med., P.C. v Travelers Prop. Cas. Ins. Co. (2008 NY Slip Op 52174(U))The insurer's timely denials and affirmed peer review raised a medical-necessity issue defeating the provider's summary judgment motion.
Northshore Chiropractic Diagnostics, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51646(U))The provider's doctor's affidavit raised a factual issue on medical necessity despite the insurer's supported peer review reports.
AJS Chiropractic, P.C. v Travelers Ins. Co. (2009 NY Slip Op 52446(U))The insurer's unrebutted chiropractic peer review established lack of medical necessity for the provider's first cause of action.
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.