August 26, 2004
Elmont Open MRI & Diagnostic Radiology, P.C. v Country Wide Ins. Co. (2004 NY Slip Op 50946(U))
https://www.beynensonlaw.com/case-law/elmont-open-mri-diagnostic-radiology-p-c-v-country-wide-ins-co-2004-ny-slip-op-50946u/
- Judge
- Scott Fairgrieve, J.
- Decided
- August 26, 2004
- Citation
- 2004 NY Slip Op 50946(U)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Issues
- Medical necessity
- Legal questions
- Lack of medical necessity · Claimant's prima facie case on motions (see the maps)
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.
Reported in New York Official Reports at Elmont Open MRI & Diagnostic Radiology, P.C. v Country Wide Ins. Co. (2004 NY Slip Op 50946(U))
| Elmont Open MRI & Diagnostic Radiology, P.C. v Country Wide Ins. Co. |
| 2004 NY Slip Op 50946(U) |
| Decided on August 26, 2004 |
| District Court Of Nassau County, First District |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
District Court of Nassau County, First District
ELMONT OPEN MRI & DIAGNOSTIC RADIOLOGY, P.C. d/b/a ALL COUNTY OPEN MRI & DIAGNOSTIC RADIOLOGY, assignee of RACHAEL CHARRIAH, Plaintiff(s)
against COUNTRY WIDE INSURANCE COMPANY, Defendant(s) |
12979/04
Scott Fairgrieve, J.
Plaintiff moves for an order, pursuant to CPLR 3212, granting summary judgment in its favor in this action to recover fees for medical treatment provided under the no-fault law to its assignor, Rachael Charriah. The defendant opposes this motion and the plaintiff has served a reply.
Plaintiff’s assignor was involved in a motor vehicle accident on January 5, 2004. Plaintiff submitted a claim to defendant in the sum of $879.73, no part of which has been paid. The defendant admits receipt of the claim on March 4, 2004 and denial of the entire claim was made on March 22, 2004.
The motion papers have established that the plaintiff submitted its proof of claim and that the defendant issued its denial within thirty days of receipt of the claim. The denial was based upon a lack of medical necessity.
Plaintiff posits that the denial was defective since it was based on the opinion of a nurse. [*2]Therefore, the defendant has not met its burden of proof of demonstrating that the services rendered, an MRI, lacked medical necessity as a nurse is a layman and her testimony may not be used to establish the standard of care in the medical field.
It is the defendant’s position that the file-based review methodology is an entrenched procedure used in many professions to determine the necessity and quality of the services performed. Further, the defendant asserts it would be unreasonable to require the denial of coverage to be based on the ground of medical necessity to be made in the first instance by a peer review doctor exclusively.
As stated in Choicenet Chiropractic v. Allstate Insurance Co., 2003 NY Slip Op 50672U:
“The defense of lack of medical necessity may be asserted on the basis either of peer review or a medical examination as implicitly provided by Insurance Regulation 11 NYCRR 65-3.8(b)(4).”
The Court held in Abraham v. Country-Wide Insurance Company, 3 Misc. 3d 130 (App Term, 2d and 11th Jud Dists 2004):
“As a general rule, for purposes of medical diagnosis and treatment, a nurse is a mere lay informant (e.g. Dombrowski v. Moore, 299 A.D.2d 949, 951, 752 N.Y.S.2d 183 [2002] whose medical opinions and conclusions drawn from the facts are incompetent and inadmissible (Nucci v. Proper, 270 A.D.2d 816, 817, 705 N.Y.S.2d 144 [2000], aff’d 95 N.Y.2d 597, 744 N.E.2d 128, 721 N.Y.S.2d 593 [2001]; People v. Russell, 165 A.D.2d 327, 332, 567 N.Y.S.2d 548 [1991]; see Prince, Richardson on Evidence § 7-101 [Farrell 11th ed]).”
Since the defendant has failed to prove lack of medical necessity through a medical examination or peer review, its denial is ineffective. Therefore, the defendant is precluded from offering a defense of lack of medical necessity despite the timeliness of the denial Amaze Medical Supply, Inc. v. Eagle Insurance Co., 2 Misc. 3d 128A (App Term, 2nd and 11th Jud Dists 2003).
Upon a review of the papers submitted, the Court concludes that the plaintiff has satisfied its burden of demonstrating entitlement to summary judgment. The defendant has failed to come forward with proof to establish the existence of triable issues of fact. Summary judgment, therefore, is granted in favor of the plaintiff.
Let judgment be entered in favor of the plaintiff in the sum of $879.73, plus statutory interest from April 4, 2004, together with statutory attorney’s fees along with costs and disbursements. Attorney’s fees not to exceed $850.00. The other issues raised by the defendant need not be addressed. [*3]
So ordered:
DISTRICT COURT JUDGE
Dated: August 26, 2004
CC:Friedman, Harfenist, Langer & Kraut
Jaffe & Nohavicka
SF/mp
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.
Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?
This decision: Insurer's medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)
Held the insurer failed to prove lack of medical necessity because its denial rested on a nurse's review, whose medical opinions are incompetent, so the denial was ineffective, the defense precluded, and the provider won summary judgment.
Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 109 (this one included) are in the same category.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Held the provider established submission of its claim and its entitlement to summary judgment, the insurer's timely denial being ineffective because it rested on a nurse's review rather than a peer review or examination.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.
Similar decisions
- Elmont Open MRI & Diagnostic Radiology, P.C. v GEICO Ins. Co. (2006 NY Slip Op 51185(U))A medical necessity denial must state the factual basis and medical rationale with sufficient particularity, even when timely issued.
- Elmont Open MRI & Diagnostic Radiology, P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 52061(U))The insurer's affirmed peer review established lack of medical necessity, and the provider failed to raise a triable medical issue.
- Elmont Open MRI & Diagnostic Radiology, P.C. v Tri-State Ins. Co. (2012 NY Slip Op 50170(U))An insurer need not annex the medical records reviewed by its peer review doctor to establish lack of medical necessity.
- Elmont Open MRI & Diagnostic Radiology, P.C. v Tri State Consumer Ins. Co. (2012 NY Slip Op 50079(U))The provider failed to submit medical evidence raising a triable issue in response to the insurer's sufficient medical-necessity peer review.
- Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Mut. Auto. Ins. Co. (2010 NY Slip Op 50202(U))The insurer failed to disprove the medical necessity of MRIs when performed, despite showing that they had been recommended prematurely.