December 21, 2011

Jesa Med. Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 52355(U))

https://www.beynensonlaw.com/case-law/jesa-med-supply-inc-v-progressive-ins-co-2011-ny-slip-op-52355u/

Court: Appellate Term, Second Department
Decided: December 21, 2011
Citation: 2011 NY Slip Op 52355(U) · 34 Misc 3d 132(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Jesa Med. Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 132(A), 2011 NY Slip Op 52355(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 unrebutted peer review report established lack of medical necessity for the supplies at issue. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's summary judgment cross motion dismissing the complaint. The affirmed report supplied a factual basis and medical rationale for the doctor's conclusion that the supplies were unnecessary. Civil Court had identified medical necessity as the sole issue for trial after finding timely denials, and the provider did not challenge its finding that the insurer was otherwise entitled to judgment.

Reported in New York Official Reports at Jesa Med. Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 52355(U))

[*1]

Jesa Med. Supply, Inc. v Progressive Ins. Co.

2011 NY Slip Op 52355(U) [34 Misc 3d 132(A)]

Decided on December 21, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2010-617 K C.

Jesa Medical Supply, Inc. as Assignee of Shirline Wilkinson, Respondent,
against
Progressive Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 2, 2010. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court found that plaintiff had established
its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claims and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, an affirmed peer review report, which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the medical supplies at issue. Defendant’s showing [*2]that the supplies were not medically necessary was unrebutted by plaintiff.

As plaintiff has not challenged the Civil Court’s finding in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted (see 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 Dists 2009]; 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]).

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: December 21, 2011

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 factual basis and medical rationale for lack of necessity of the supplies, which the provider did not rebut, so the insurer's cross motion was granted.

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.

Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U)) FollowedThe 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)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

Iav Med. Supply, Inc. v Progressive Ins. Co. (2010 NY Slip Op 52155(U))The insurer's peer review established lack of medical necessity for the supplies, and the provider did not oppose the cross motion.
MSSA Corp. v American Tr. Ins. Co. (2011 NY Slip Op 51864(U))The insurer's unrebutted peer review established lack of medical necessity for the supplies and warranted summary judgment.
Jesa Med. Supply, Inc. v American Tr. Ins. Co. (2012 NY Slip Op 50052(U))The provider's action was premature because requested verification remained outstanding and the insurer's time to pay or deny had not begun.
SI Med. & Surgical Supply, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50054(U))The insurer's peer reviews established lack of medical necessity for the supplies, and the provider did not rebut that showing.
Sky Med. Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50260(U))The insurer's unrebutted chiropractic peer reviews established that the disputed supplies lacked medical necessity.