January 17, 2012

Elmont Open MRI & Diagnostic Radiology, P.C. v Tri State Consumer Ins. Co. (2012 NY Slip Op 50079(U))

https://www.beynensonlaw.com/case-law/elmont-open-mri-diagnostic-radiology-p-c-v-tri-state-consumer-ins-co-2012ny-slip-op-50079u/

Court: Appellate Term, Second Department
Decided: January 17, 2012
Citation: 2012 NY Slip Op 50079(U) · 34 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Elmont Open MRI & Diagnostic Radiology, P.C. v Tri State Consumer Ins. Co., 34 Misc 3d 141(A), 2012 NY Slip Op 50079(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2012)

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 failed to submit medical evidence raising a triable issue in response to the insurer's sufficient medical-necessity peer review. The provider conceded timely mailing of denials asserting lack of medical necessity and, alternatively, charges exceeding the fee schedules. The insurer's affirmed peer review report supplied a sufficient factual basis and medical rationale for finding the services unnecessary, shifting the burden to the provider. Its opposition did not meet that burden. The Appellate Term, Second Department, reversed the order denying the insurer's summary judgment motion and granted the motion dismissing the complaint on medical-necessity grounds.

Reported in New York Official Reports at Elmont Open MRI & Diagnostic Radiology, P.C. v Tri State Consumer Ins. Co. (2012 NY Slip Op 50079(U))

[*1]

Elmont Open MRI & Diagnostic Radiology, P.C. v Tri State Consumer Ins. Co.

2012 NY Slip Op 50079(U) [34 Misc 3d 141(A)]

Decided on January 17, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 17, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : NICOLAI, P.J., MOLIA and IANNACCI, JJ
2010-2251 N C.

Elmont Open MRI & Diagnostic Radiology, P.C. Doing Business as ALL COUNTY OPEN MRI & DIAGNOSTIC RADIOLOGY as Assignee of MARLENE ESKANAZY, Respondent,
against
Tri State Consumer Insurance Company, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated July 15, 2010. 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 denying its motion for summary judgment dismissing the complaint.

Plaintiff concedes that defendant timely mailed the denial of claim forms, which denied the claims on the ground of lack of medical necessity as well as on the alternative ground that the amounts billed for were in excess of the fee schedules. The record establishes that the affirmed peer review report submitted in support of defendant’s motion set forth a sufficient factual basis and medical rationale to demonstrate a lack of medical necessity for the services rendered (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]; 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]). As a result, the burden shifted to plaintiff to rebut defendant’s showing.

Since plaintiff, in opposition to defendant’s motion, failed to submit any medical evidence sufficient to raise a triable issue of fact as to medical necessity, defendant was entitled to summary judgment (see Elmont Open MRI & Diagnostic Radiology, P.C. v Clarendon Natl. Ins. Co., 29 Misc 3d 139[A], 2010 NY Slip Op 52061[U] [App Term, 9th & 10th Jud Dists 2010]; Speciality Surgical Servs. v Travelers Ins. Co. 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud Dists 2010]; 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. [*2]

Nicolai, P.J., Molia and Iannaccci, JJ., concur.
Decision Date: January 17, 2012

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

Held the affirmed peer review report set forth a sufficient factual basis and medical rationale, shifting the burden, and the provider submitted no medical evidence raising a triable issue, so the insurer was granted summary judgment.

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.

Cited in this decision

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

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.
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.
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.
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.
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.

Similar decisions

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 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.
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 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.
Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 52062(U))The insurer's chiropractor supplied a sufficient medical rationale and factual basis for finding the services medically unnecessary.