May 10, 2010
Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co. (2010 NY Slip Op 50829(U))
https://www.beynensonlaw.com/case-law/elmont-open-mri-diagnostic-radiology-p-c-v-state-farm-ins-co-2010-nyslip-op-50829u/
- Decided
- May 10, 2010
- Citation
- 2010 NY Slip Op 50829(U) · 27 Misc 3d 136(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 10 later decisions (see Cited by)
- Issues
- Medical necessity
- Legal questions
- Lack of medical necessity · Proof of mailing (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 State Farm Ins. Co. (2010 NY Slip Op 50829(U))
| Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co. |
| 2010 NY Slip Op 50829(U) [27 Misc 3d 136(A)] |
| Decided on May 10, 2010 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and IANNACCI, JJ
2009-140 N C.
against
State Farm Insurance Company, Appellant.
Appeal from an amended order of the District Court of Nassau County, First District (Andrew M. Engel, J.), dated July 17, 2008. The amended order granted plaintiff’s motion for summary judgment.
ORDERED that the amended order is reversed without costs and plaintiff’s motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant opposed the motion on the ground that the services provided were not medically necessary. The District Court granted plaintiff’s motion, and this appeal ensued.
While defendant argues that the affidavit of plaintiff’s billing collection supervisor was insufficient to establish plaintiff’s prima facie case, we do not pass on the propriety of the determination of the District Court with respect thereto as defendant raises this issue for the first time on appeal (see Westchester Neurodiagnostic, P.C. v Allstate Ins. Co., 24 Misc 3d 133[A], 2009 NY Slip Op 51385[U] [App Term, 9th & 10th Jud Dists 2009]; Nyack Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 133[A], 2008 NY Slip Op 52184[U] [App Term, 9th & 10th Jud Dists 2008]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]). [*2]
In support of its motion, plaintiff submitted defendant’s affirmed peer review reports and argued that plaintiff was entitled to summary judgment because the peer review reports did not adequately set forth a medical justification to support the peer review doctor’s conclusions that the services at issue were not medically necessary. In opposition to plaintiff’s motion, defendant established that its denial of claim forms, which relied upon the peer review reports, were timely (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Contrary to the conclusion of the District Court, we find that the peer review reports set forth a sufficient factual basis and medical rationale to demonstrate the existence of an issue of fact as to medical necessity (see B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]; see also A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51016[U] [App Term, 9th & 10th Jud Dists 2009]). Accordingly, plaintiff’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Tanenbaum, J.P., Molia and Iannacci, JJ., concur.
Decision Date: May 10, 2010
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 proof was enough to defeat the provider's motion but not to win
Held the insurer's affirmed peer review reports set forth a sufficient factual basis and medical rationale to raise an issue of fact as to medical necessity, so the provider's motion should have been denied.
Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.
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 insurer established in opposition that its denial forms relying on the peer review reports were timely.
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.
- Westchester Neurodiagnostic, P.C. v Allstate Ins. Co. (2009 NY Slip Op 51385(U)) FollowedThe insurer failed to establish that its medical necessity defense was preserved by timely mailing of the denial.
- Nyack Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52184(U)) FollowedAn insurer must accept a completed hospital facility form in place of an application for motor vehicle no-fault benefits.
- Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52046(U)) FollowedThe provider recovered on the first claim, but the second was premature because requested assignment verification remained unanswered.
- B.Y., M.D., P.C. v Progressive Cas. Ins. Co. (2010 NY Slip Op 50144(U)) FollowedThe providers' treating doctor's affirmation failed to rebut the insurer's peer review and IME evidence of lack of medical necessity.
- A.B. Med. Servs., PLLC v Country-Wide Ins. Co. (2009 NY Slip Op 51016(U))The providers obtained partial summary judgment for untimely denials, unproved verification tolling, and unsworn peer reviews.
Cited by (12)
A label shows how the later decision treated this one.
- 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.
- Total Equip., LLC v Praetorian Ins. Co. (2012 NY Slip Op 50078(U)) FollowedThe insurer's chiropractor's affidavit and IME report established lack of medical necessity for the equipment, and the motion was unopposed.
- Total Equip., LLC v Praetorian Ins. Co. (2012 NY Slip Op 50155(U)) FollowedThe insurer's affirmed IME report established lack of medical necessity for the supplies, and the provider failed to rebut that showing.
- Elmont Open MRI & Diagnostic Radiology, P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 52061(U)) FollowedThe insurer's affirmed peer review established lack of medical necessity, and the provider failed to raise a triable medical issue.
- American Chiropractic Care, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50346(U)) FollowedThe provider's treating chiropractor's sworn letter raised a factual issue on medical necessity despite the insurer's peer review.
- Total Equip., LLC v Mercury Cas. Co. (2013 NY Slip Op 52220(U)) FollowedThe insurer established lack of medical necessity for supplies dispensed after its IME cutoff, despite a prescription written before the IME. An affirmed orthopedic IME report supplied a factual basis and medical rationale that the assignor's injuries had resolved and no equipment, testing, or treatment was needed.
- Bronx Mega Care Med, PLLC v Federal Ins. Co. (2015 NY Slip Op 51060(U)) FollowedThe provider's doctor's affirmation failed to meaningfully address or rebut the insurer's IME conclusions on medical necessity.
- Elmont Open MRI & Diagnostic Radiology, P.C. v Tri State Consumer Ins. Co. (2012 NY Slip Op 50079(U)) FollowedThe 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 Tri-State Ins. Co. (2012 NY Slip Op 50170(U)) FollowedAn insurer need not annex the medical records reviewed by its peer review doctor to establish lack of medical necessity.
- Brownsville Advance Med., P.C. v Kemper Independence Ins. Co. (2012 NY Slip Op 51629(U)) FollowedThe insurer's IME report established lack of medical necessity, and the provider offered no opposing sworn evidence from a medical professional.
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.
- All County Open MRI & Diagn. Radiology P.C. v Travelers Ins. Co. (2006 NY Slip Op 50318(U))A peer review citing insufficient information cannot support denial without proof that the insurer sought that information through verification.
- Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50607(U))The provider's summary judgment award was vacated because outstanding verification presented a triable factual issue.
- Elmont Open MRI & Diagnostic Radiology, P.C. v Travelers Indem. Co. (2010 NY Slip Op 52223(U))A peer review may assume medical-record facts are true to assess necessity without using the records for a hearsay purpose.
- 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.