November 5, 2009

Exclusive Med. Supply, Inc. v Mercury Ins. Group (2009 NY Slip Op 52273(U))

https://www.beynensonlaw.com/case-law/exclusive-med-supply-inc-v-mercury-ins-group-2009-ny-slip-op52273u/

Court: Appellate Term, Second Department
Decided: November 5, 2009
Citation: 2009 NY Slip Op 52273(U) · 25 Misc 3d 136(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity Timeliness and preclusion
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Exclusive Med. Supply, Inc. v Mercury Ins. Group, 25 Misc 3d 136(A), 2009 NY Slip Op 52273(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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 timely denials and unrebutted peer reviews established that the medical equipment lacked medical necessity. In the provider's action for assigned no-fault benefits, the insurer supported its summary judgment motion with a claims representative's affidavit describing standard procedures for properly addressing and mailing denials. An affirmed physician's peer review report and an affidavit from the chiropractor who performed a second peer review supplied factual bases and medical rationales for finding the equipment unnecessary. The provider submitted no evidence rebutting that showing, and its objections to the insurer's papers lacked merit. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at Exclusive Med. Supply, Inc. v Mercury Ins. Group (2009 NY Slip Op 52273(U))

[*1]

Exclusive Med. Supply, Inc. v Mercury Ins. Group

2009 NY Slip Op 52273(U) [25 Misc 3d 136(A)]

Decided on November 5, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 5, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-1913 K C.

Exclusive Medical Supply, Inc. a/a/o ISMAILLE DESRAVINES, Respondent,
against
Mercury Insurance Group, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), dated August 14, 2008. 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 moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. The Civil Court denied defendant’s motion. The instant appeal by defendant ensued.

Contrary to plaintiff’s contention, the affidavit of defendant’s claims representative established that the denial of claim forms, which denied the subject claims on the ground of lack of medical necessity based upon two peer review reports, were timely mailed in accordance with defendant’s standard office practice or procedure used to ensure that the denials were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).

In support of defendant’s motion for summary judgment dismissing the complaint, defendant annexed an affirmed peer review report by a doctor as well as an affidavit executed by the chiropractor who performed the second peer review. Since the foregoing documents set forth a factual basis and medical rationale for the peer reviewers’ opinions that the medical equipment provided was not medically necessary, defendant established, prima facie, a lack of medical necessity for the equipment in question (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud [*2]Dists 2009]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). As plaintiff failed to submit any evidence to rebut defendant’s showing of a lack of medical necessity and as plaintiff’s objections to defendant’s papers lack merit, defendant’s motion should have been granted (see e.g. Delta Diagnostic Radiology, P.C., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; 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]; see also Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 05, 2009

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.

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 an affirmed peer review and a chiropractor's sworn peer review set forth a factual basis and medical rationale, and the provider submitted no rebutting evidence, so summary judgment went to the insurer.

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.

Proof of mailing

Open the full map

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)

Rejected the provider's challenge and held the claims representative's affidavit established timely mailing of the denials under a standard practice ensuring proper addressing and mailing.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

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.

Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U))The insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Amaze Med. Supply Inc. v Allstate Ins. Co. (2006 NY Slip Op 51412(U))The insurer's peer review supplied a factual basis and medical rationale sufficient to raise a triable issue of medical necessity.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U))The provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
PLP Acupuncture, P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 50491(U))The insurer's peer review report and acupuncturist's affidavit established lack of medical necessity, and the provider failed to rebut that showing.

Cited by

A label shows how the later decision treated this one.

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.
Infinity Health Prods., Ltd. v Mercury Ins. Co. (2010 NY Slip Op 50385(U))The provider's doctor's affirmation raised a triable issue concerning the medical necessity of equipment billed in the second cause of action.
High Quality Med., P.C. v Mercury Ins. Co. (2010 NY Slip Op 50447(U))The provider's doctor's affirmation failed to meaningfully address or rebut the insurer's peer review conclusions on medical necessity.
Co-Op City Chiropractic, P.C. v Mercury Ins. Group (2010 NY Slip Op 50452(U))The provider's treating chiropractor's affidavit raised a triable issue of fact concerning the medical necessity of the services.

Similar decisions

Mutual Care Med. Supply, Inc. v Mercury Cas. Co. (2010 NY Slip Op 51734(U))The insurer's peer-review evidence established lack of medical necessity, and the provider failed to submit a meaningful medical rebuttal.
I.V. Med. Supply, Inc. v Mercury Ins. Group (2010 NY Slip Op 51736(U))The provider's counsel's affirmation did not rebut the insurer's supported peer review finding the medical supplies unnecessary.
Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co. (2009 NY Slip Op 50731(U))The provider failed to rebut the insurer's IME proof that the supplied items were not medically necessary.
Comfort Supply, Inc. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 52289(U))A peer review report is not inadmissible merely because the insurer omits the underlying medical records considered by the reviewer.
Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50189(U))The insurer's peer reviews established lack of medical necessity, and the provider failed to offer a meaningful rebuttal.