May 1, 2015

Gaetane Physical Therapy, P.C. v Great N. Ins. Co. (2015 NY Slip Op 50698(U))

https://www.beynensonlaw.com/case-law/gaetane-physical-therapy-p-c-v-great-n-ins-co-2015-ny-slip-op50698u/

Court: Appellate Term, Second Department
Decided: May 1, 2015
Citation: 2015 NY Slip Op 50698(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Gaetane Physical Therapy, P.C. v Great N. Ins. Co., 2015 NY Slip Op 50698(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2015)

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 orthopedic IME report established lack of medical necessity, and the provider offered no medical evidence to rebut it. The affirmed report supplied a factual basis and medical rationale for the doctor's conclusions. The provider's principal submitted an affidavit but did not indicate having examined the assignor or otherwise rebut the IME findings with medical evidence. The provider therefore raised no triable issue. It also did not challenge District Court, Nassau County's finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at Gaetane Physical Therapy, P.C. v Great N. Ins. Co. (2015 NY Slip Op 50698(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Gaetane Physical Therapy, P.C. as Assignee of KEVIN RAYMOND, Respondent,
against
Great Northern Insurance Company Doing Business as CHUBB GROUP OF INSURANCE COMPANIES, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Scott Fairgrieve, J.), dated February 19, 2014. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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, and plaintiff opposed the motion. Insofar as is relevant to this appeal by defendant, the District Court denied defendant’s motion and held that the only issue for trial was defendant’s defense of lack of medical necessity.

In support of its motion, defendant submitted, among other things, an affirmed medical report by the doctor who had performed the orthopedic independent medical examination (IME) on defendant’s behalf. The report set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the treatment at issue (see Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 141[A], 2012 NY Slip Op 50078[U] [App Term, 9th & 10th Jud Dists 2012]; 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]). In opposition to the motion, plaintiff submitted an affidavit by its principal, who did not indicate that she had examined the assignor or otherwise offer any medical evidence to rebut the conclusions set forth in the IME report. Thus, plaintiff failed to raise a triable issue of fact as to medical necessity (see 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]). As plaintiff has not challenged the District Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted (see Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50155[U] [App Term, 9th & 10th Jud Dists 2012]).

Iannacci, J.P., Tolbert and Garguilo, JJ., concur.

Decision Date: May 01, 2015

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

Granted the insurer summary judgment because the affirmed IME report set forth a factual basis and medical rationale, and the provider's principal, who did not indicate she had examined the assignor, offered no medical rebuttal.

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.

Total Equip., LLC v Praetorian Ins. Co. (2012 NY Slip Op 50078(U))The insurer's chiropractor's affidavit and IME report established lack of medical necessity for the equipment, and the motion was unopposed.
Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co. (2010 NY Slip Op 50829(U))The insurer's affirmed peer reviews raised a triable issue of medical necessity and defeated the provider's summary judgment motion.
Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
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.

Cited by

AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C. (2016 NY Slip Op 00916)The provider's affidavits and medical records raised a triable issue of medical necessity despite the insurer's prima facie showing.

Similar decisions

Theracare & Wellness, P.T., P.C. v Great N. Ins. Co. (2016 NY Slip Op 51429(U))The insurer's unrebutted IME report established a lack of medical necessity for the treatment at issue.
Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50373(U))The insurer failed to prove a timely denial, and the provider failed to establish its prima facie entitlement to summary judgment.
Lenox Hill Radiology & MIA, P.C. v Great N. Ins. Co. (2015 NY Slip Op 50680(U))The provider's doctor's affirmation raised a triable issue of medical necessity in response to the insurer's peer review report.
Great Health Care Chiropractic, P.C. v Maya Assur. Co. (2014 NY Slip Op 51803(U))The insurer failed to prove mailing of IME scheduling letters, and the provider failed to establish entitlement to summary judgment.
Kappa Med., P.C. v Chubb Indem. Ins. Co. (2017 NY Slip Op 51199(U))The insurer's doctor's affidavit failed to establish the assignor's IME nonappearance through personal knowledge or other appropriate proof.