August 16, 2011

MSSA Corp. v Redland Ins. Co. (2011 NY Slip Op 51606(U))

https://www.beynensonlaw.com/case-law/mssa-corp-v-redland-ins-co-2011-ny-slip-op-51606u/

Court: Appellate Term, Second Department
Decided: August 16, 2011
Citation: 2011 NY Slip Op 51606(U) · 32 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

MSSA Corp. v Redland Ins. Co., 32 Misc 3d 141(A), 2011 NY Slip Op 51606(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 established a factual basis and medical rationale for denying the supplies as medically unnecessary. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the provider's complaint. An affidavit established timely mailing of the medical-necessity denials through standard office practices. The affirmed peer review report and reviewing physician's affirmation established lack of medical necessity. The provider submitted no practitioner affidavit meaningfully addressing or rebutting the review's conclusions. A dissent would have affirmed, finding the review conclusory and vague because it did not sufficiently describe the assignor's condition or explain why the equipment was unnecessary.

Reported in New York Official Reports at MSSA Corp. v Redland Ins. Co. (2011 NY Slip Op 51606(U))

[*1]

MSSA Corp. v Redland Ins. Co.

2011 NY Slip Op 51606(U) [32 Misc 3d 141(A)]

Decided on August 16, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : STEINHARDT, J.P., GOLIA and RIOS, JJ
2010-163 K C.

MSSA Corp. as Assignee of JOSEPHINE PIZARRO, Respondent,
against
Redland Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered October 7, 2009. The order denied defendant’s motion for summary judgment.

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 which denied its motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its motion for summary judgment was sufficient to establish that defendant’s denial of claim forms, which denied the claims at issue on the ground of lack of medical necessity, had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted, among other things, an affirmed peer review report, as well as an affirmation executed by the physician who had performed the peer review, which set forth a factual basis and medical rationale for the conclusion that there was no medical necessity for the medical supplies at issue. As plaintiff failed to proffer an affidavit from a health care practitioner which meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review report (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]), defendant’s motion for summary judgment should have been granted (see Delta [*2]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]).

Golia and Rios, JJ., concur.

Steinhardt, J.P., dissents in a separate memorandum.

Steinhardt, J.P., dissents and votes to affirm the order in the following memorandum:

It is undisputed that plaintiff did not submit medical opposition to defendant’s motion for summary judgment, which was based on lack of medical necessity. However, I am of the opinion that the documentation submitted by defendant in support of its motion is insufficient to shift the burden to plaintiff.

“Lack of medical necessity is a defense to an action to recover no-fault benefits, which an insurer may assert pursuant to a timely claim denial, based on . . . a sufficiently detailed peer review report” (Amaze Med. Supply v Eagle Ins., 2 Misc 3d 139[A], 2004 NY Slip Op 50279[U] [App Term, 2d & 11th Jud Dists 2004]). To support a motion for summary judgment, a peer review report must set forth a factual basis and medical rationale sufficient to establish, prima facie, the lack of medical necessity (see Urban Radiology, P.C. v GEICO Gen. Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52157[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

In the instant matter, the peer review report of Dr. Ross did not “shed any light” on the assignor’s condition, nor did it state, in any sufficiently detailed manner, the reason the medical equipment at issue was not needed. The reader of the report is at a total loss to determine what actually happened to the assignor and what parts of her anatomy are amiss and in what way. “Bilateral shoulder and left elbow” injuries may range from a complicated fracture to a minor contusion. Without more, the report is conclusory and vague, and insufficient to shift the burden to plaintiff. I therefore vote to affirm the order denying defendant’s motion for summary judgment.
Decision Date: August 16, 2011

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 affirmed peer review and the reviewer's affirmation set forth a factual basis and medical rationale, and the provider offered no practitioner affidavit meaningfully referring to it, so the insurer won 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.

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)

Held the insurer's affidavit sufficiently established that its denial forms were timely mailed in accordance with its standard office practices and procedures.

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.

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
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.
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.
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.
Amaze Med. Supply v Eagle Ins. Co. (2004 NY Slip Op 50279(U))A provider cannot invoke preclusion to defeat a defense concerning unprescribed equipment when its own motion papers raise that issue.
Urban Radiology, P.C. v GEICO Gen. Ins. Co. (2010 NY Slip Op 52157(U))The insurer's peer reviews established lack of medical necessity, and the provider submitted no written opposition to the cross motion.

Cited by

Total Equip., LLC v Praetorian Ins. Co. (2011 NY Slip Op 21398)The provider established a need for discovery of the no-fault file before opposing the insurer's medical-necessity motion.

Similar decisions

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.
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.
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.
Medical Assoc., P.C. v Interboro Ins. Co. (2012 NY Slip Op 50392(U))The provider's unsworn medical report failed to defeat the insurer's supported motion for summary judgment on lack of medical necessity.
Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 51771(U))The insurer's timely denial and affirmed peer review raised a triable issue of medical necessity for the supplied equipment.