March 19, 2010

Gz Med. & Diagnostic, P.C. v Mercury Ins. Co. (2010 NY Slip Op 50491(U))

https://www.beynensonlaw.com/case-law/gz-med-diagnostic-p-c-v-mercury-ins-co-2010-ny-slip-op50491u/

Court: Appellate Term, Second Department
Decided: March 19, 2010
Citation: 2010 NY Slip Op 50491(U) · 26 Misc 3d 146(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity Discovery and procedure
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Gz Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146(A), 2010 NY Slip Op 50491(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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 rebut the insurer's peer review report or show that discovery was needed to oppose partial summary judgment. The Appellate Term, Second Department, reversed the order and granted the insurer's motion dismissing the second and third causes of action. Timely denials and an affirmed peer review report supplying a factual basis and medical rationale established the insurer's prima facie defense. The provider's doctor's affirmation did not meaningfully address the report's conclusions. Although the provider asserted that it lacked information and documents relied on by the reviewer, it failed under CPLR 3212 (f) to demonstrate that discovery was needed to establish a triable issue of fact.

Reported in New York Official Reports at Gz Med. & Diagnostic, P.C. v Mercury Ins. Co. (2010 NY Slip Op 50491(U))

[*1]

Gz Med. & Diagnostic, P.C. v Mercury Ins. Co.

2010 NY Slip Op 50491(U) [26 Misc 3d 146(A)]

Decided on March 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 19, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-508 Q C.

GZ Medical and Diagnostic, P.C. as assignee of LINA GALAN, Respondent,
against
Mercury Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered January 23, 2009. The order denied defendant’s motion for partial summary judgment dismissing plaintiff’s second and third causes of action.

ORDERED that the order is reversed without costs and defendant’s motion for partial summary judgment dismissing plaintiff’s second and third causes of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for partial summary judgment dismissing plaintiff’s second and third causes of action on the ground that the services rendered to plaintiff’s assignor for which plaintiff sought payment were not medically necessary.
Plaintiff opposed the motion, and the Civil Court denied the motion, finding that there was a question of fact as to medical necessity.

Defendant made a prima facie showing of its entitlement to partial summary judgment dismissing plaintiff’s second and third causes of action by establishing that it timely denied the claim forms (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]), on the ground of lack of medical necessity, and by submitting an affirmed peer review report of its doctor, which set forth a factual basis and medical rationale for the doctor’s opinion that the medical services provided to plaintiff’s assignor were not medically necessary [*2](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]). In opposition to the motion, plaintiff failed to raise a triable issue of fact. Contrary to the finding of the Civil Court, the affirmation of plaintiff’s doctor did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (id.; see also Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Although plaintiff stated that it was not in possession of all the information and documents relied upon by defendant’s peer reviewer, and that said documents were “essential to justify opposition” to defendant’s motion (see CPLR 3212 [f]), plaintiff, in this case, “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]).

Accordingly, defendant’s motion for partial summary judgment dismissing plaintiff’s second and third causes of action is granted (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U] [App Term, 2d & 11th Jud Dists 2008]; 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]).

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 19, 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.

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 insurer's affirmed peer review set forth a factual basis and medical rationale, and the provider's doctor's affirmation did not meaningfully refer to or rebut it, so partial 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

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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 that it timely mailed its medical-necessity denials, as part of its prima facie showing, though the result turned on the unrebutted peer review.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
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.
Innovative Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 52321(U))The insurer established timely denials and lack of medical necessity, and the provider's chiropractor failed to rebut the insurer's showing.
Delta Diagnostic Radiology, P.C. v Interboro Ins. Co. (2009 NY Slip Op 52222(U)) FollowedThe insurer waived its late-claim defense by failing to advise the provider that reasonable justification could excuse late submission.
Delta Diagnostic Radiology, P.C. v Progressive Casualty Insurance Company (2008 NY Slip Op 52450(U))The insurer's peer review reports and chiropractor's affidavit established that two MRIs were not medically necessary.
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.

Cited by

A label shows how the later decision treated this one.

Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (2010 NY Slip Op 50987(U)) FollowedThe insurer established premature claims for unanswered verification and lack of medical necessity for the remaining claims.
Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 52222(U))A peer reviewer may assume the truth of treatment records to assess medical necessity without using those records for a hearsay purpose.
AAA Chiropractic, P.C. v MVAIC (2010 NY Slip Op 51896(U))The provider's late claims were dismissed because it showed no written justification, and its conclusory demand for discovery did not defeat judgment.
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.
Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2010 NY Slip Op 50997(U))The provider failed to rebut the insurer's medical necessity showing or demonstrate that discovery was needed to raise a triable issue.
Mega Supply & Billing, Inc. v Larendon Natl. Ins. Co. (2010 NY Slip Op 51452(U))The provider failed to rebut the insurer's peer review or justify deferring summary judgment to obtain the reviewer's underlying records.
Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2012 NY Slip Op 50149(U))An insurer need not attach the records reviewed by its peer reviewer to establish lack of medical necessity on summary judgment.
Bath Med. Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 52316(U))The insurer's peer reviews established lack of medical necessity, and the provider failed to justify delaying summary judgment for discovery.

Similar decisions

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.
Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U))The insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.
Radiology Today, P.C. v Mercury Ins. Co. (2012 NY Slip Op 50148(U))The provider's owner's affirmation was improper under CPLR 2106 and failed to rebut the insurer's medical-necessity peer review.
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.
Crotona Hgts. Med., P.C. v Mercury Ins. Co. (2010 NY Slip Op 52019(U))A physician who is a principal of the provider corporation may not submit an affirmation under CPLR 2106 in its action.