April 1, 2011

Novacare Med. P.C. v Travelers Prop. Cas. Ins. Co. (2011 NY Slip Op 50500(U))


The court considered the motion for summary judgment by the defendant, Travelers Property Casualty Ins. Co., in a case involving electro-diagnostic testing performed by Novacare Medical P.C. on an assignor, Winston J. Thorpe. The main issue decided was whether the submission of an affirmed peer review report is sufficient to shift the burden to the plaintiff to submit opposing expert proof in order to defeat an insurer's summary judgment motion. The court held that a conclusory unsubstantiated peer review report is not enough to meet the insurer's initial burden, and that the burden of submitting contrary evidentiary proof is not properly imposed on the opponent until the moving party meets its initial burden. The court also found that the defendant's proof of mailing of its denials was sufficient, and that its fee schedule defense was established, but that the issue of medical necessity would need to be tried.

Reported in New York Official Reports at Novacare Med. P.C. v Travelers Prop. Cas. Ins. Co. (2011 NY Slip Op 50500(U))

Novacare Med. P.C. v Travelers Prop. Cas. Ins. Co. (2011 NY Slip Op 50500(U)) [*1]
Novacare Med. P.C. v Travelers Prop. Cas. Ins. Co.
2011 NY Slip Op 50500(U) [31 Misc 3d 1205(A)]
Decided on April 1, 2011
District Court Of Nassau County, Second District
Ciaffa, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 1, 2011

District Court of Nassau County, Second District

Novacare Medical P.C., a/o Winston J. Thorpe, Plaintiff(s)


Travelers Property Casualty Ins. Co., Defendant(s).


Friedman, Harfenist, Langer & Kraut, LLP 3000 Marcus Ave., Suite 2E1, Lake Success, NY 11042, Attorney for Plaintiff

Law Office of Karen Dodson, 100 Baylis Road, Suite 100, Melville, NY 11747, attorney for Defendant

Michael A. Ciaffa, J.

Defendant moves for an order granting it summary judgment dismissing plaintiff’s no-fault claims. Plaintiff opposes the motion.

The claims at issue involve electro-diagnostic testing that plaintiff performed upon its assignor, Winston J. Thorpe, based upon a neurologist’s referral. According to defendant’s peer review doctor, the medical records and findings that he reviewed “are inadequate in supporting the need for electro-diagnostic testing on this claimant.” Plaintiff’s opposition disputes the peer review doctor’s opinion, but it submits no expert proof of its own controverting the opinion of defendant’s expert.

Plaintiff’s opposition raises an important threshold legal question: is submission of an affirmed peer review report sufficient, by itself, to shift the burden to the plaintiff to submit opposing expert proof in order to defeat an insurer’s summary judgment motion? Recent Appellate Term decisions provide no clear answer to this question. Upon closer analysis, however, the Appellate Term’s decisions limit such burden shifting to cases where the peer review report sets forth a facially valid “factual basis and medical rationale.” While the quantum [*2]of proof needed to meet that burden may not be as stringent as required at a trial, cf. Nir v. Allstate Ins. Co., 7 Misc 3d 544, 546-7 (Civ Ct Kings Co 2005), the law continues to place the burden upon the defendant to satisfy the time-tested standards for obtaining summary judgment. If the opponent can show that an expert’s opinion is conclusory, or fails to address essential factual issues, or is based upon disputed or incorrect facts, the motion should be denied regardless of whether the opponent submits opposing expert proof. Nothing in the recent caselaw suggests the existence of a special exception for no-fault cases.


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The general rules governing summary judgment motions are well-settled. Summary judgment is a “drastic remedy” which “should not be granted where there is any doubt” as to the existence of a material triable issue. Sillman v. Twentieth Century-Fox, 3 NY2d 395, 404 (1957). The proponent of the motion “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” Winegrad v, NYU Med Center, 64 NY2d 851, 853 (1985). “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers.” Id.

Once the moving party meets its initial burden, “the burden shifts to the party opposing the motion. . . to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” Alvarez v. Prospect Hosp., 68 NY2d 329, 324 (1986). But the converse of this rule is equally true: unless and until the moving party meets its initial burden, the burden of submitting contrary evidentiary proof is not properly imposed on the opponent.

The latter rule finds common application in medical malpractice cases. In Winegrad v. NYU Med. Center, supra, for instance, the Court held that “bare conclusory assertions” from the defendant doctors, denying that they deviated “from good and accepted medical practices,” were insufficient to establish that a plaintiff’s cause of action “has no merit so as to entitle defendants to summary judgment.” 64 NY2d at 853. The Court of Appeals accordingly reversed a lower court decision granting summary judgment to the defendants. Id. It did so notwithstanding the fact that the plaintiffs had submitted “only their Counsel’s affidavit” in opposition to defendants’ motion. Id. at 852.

Likewise, where a defendant doctor’s medical expert fails to address essential factual issues in his moving affidavit contesting a claim of medical malpractice, and bases his opinion upon “disputed or apparently incorrect facts,” the Second Department’s decisions call for denial of the defendant’s motion “despite the insufficiency of the evidence proferred by the plaintiffs in opposition . . .” See e.g. Muscatello v. City of New York, 215 AD2d 463 (2d Dept. 1995); Gray v. South Nassau Communities Hosp., 245 AD2d 337 (2d Dept. 1997). [*3]

The instant no-fault action involves an area of the law that often presents similar issues of medical judgment, akin to those presented in a medical malpractice case. Over the last several years, the District Court has seen an increasing number of summary judgment motions by insurers seeking dismissal of a no-fault claim, based upon an affirmed peer review report. See generally, Siegel and Lusting, Insurer’s Use of Peer Review Report at Summary Judgment, NYLJ 6/15/09, at p. 1 col. 4. The trend in the Appellate Term decisions seems to look favorably upon such motions. Under the


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controlling appellate court precedents, however, in order for the insurer to prevail on the motion, the peer review report must nonetheless set forth a sufficient “factual basis and medical rationale” for the peer doctor’s conclusions. Id., citing cases; see e.g. Elmont Open MRI v. Clarendon Natl. Ins. Co., 2010 NY Slip Op 52061 (App Term, 9th & 10th Jud Dists.).

The published decisions of the Appellate Term, Second Department, have not precisely defined the phrase “factual basis and medical rationale.” To the extent that lower courts have attempted to define the phrase, see e.g. Nir v. Allstate Ins. Co., supra, the Appellate Term, to date, has not accepted any one definition. Nor has it insisted upon proof from a peer review doctor that links the doctor’s opinion to “generally accepted” medical practices. See Elmont Open MRI v. Clarendon Nat. Ins. Co., 2010 NY Slip Op 52061, supra, reversing decision and order of District Court, Nassau Co. (Ciaffa, J.), dated May 12, 2009.

Nevertheless, this Court sees no indication in the Appellate Term’s recent decisions that a conclusory unsubstantiated peer review report, by itself, is enough to meet the insurer’s initial burden. Older decisions by the Appellate Term make plain that “bare, conclusory assertion[s]” in a peer review report are insufficient “to create a triable issue of . . . medical necessity.” See Choicenet Chiropractic P.C. v. Allstate Ins. Co., 2003 NY Slip Op 50672 (App Term, 2d & 11th Jud Dists). A fortiorari, “bare conclusory assertions” in a peer review report should likewise be insufficient to satisfy the moving party’s burden on a summary judgment motion alleging lack of medical necessity.

Moreover, if a peer review report ignores or misrepresents documented facts in the medical records, the opponent can and should be able to point out such shortcomings. Although the Appellate Term has held that the records and reports reviewed by the peer review doctor “are not part of the defendant’s prima facie showing,” see Active Imaging, P.C. v. Progressive Northeastern Ins. Co., 2010 NY Slip Op 51842 (App Term, 2d, 11th & 13th Jud Dists), the opponent can certainly make use of such reports and records in challenging whether the peer doctor’s opinion includes a sufficient “factual basis and medical rationale.” Absent appellate authority to the contrary, this Court sees no reason why plaintiff’s counsel cannot utilize the underlying medical records, as plaintiff’s counsel does here, as part of a broad-based effort to convince the Court that defendant’s moving papers are insufficient to meet the insurer’s burden [*4]on a motion for summary judgment.

In short, there appears to be no basis in the law, and no basis in logic, for accepting an affirmed peer review doctor’s opinion, carte blanche, without scrutinizing the report’s contents. As plaintiff’s counsel cogently argues, “[e]very peer review report is different and requires individual scrutiny to determine whether or not in contains a [sufficient] factual basis and medical rationale.” The Court agrees that such scrutiny is


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necessary and appropriate before it decides whether the burden should be shifted back to the plaintiff to submit contrary expert proof. If the plaintiff can demonstrate, through references to the medical records or otherwise, that the peer review doctor’s opinion lacks a sufficient “factual basis” and/or “medical rationale” because it is conclusory, or because it fails to address essential factual issues or is based upon disputed or apparently incorrect facts, the defendant’s motion should be denied regardless of whether plaintiff submits expert proof of its own.

In the instant matter, plaintiff’s opposition points to such shortcomings in the peer review report. The peer review doctor’s opinion rests, in large part, upon his factual assumption that the medical records failed to document “persistent radicular symptoms”. However, as plaintiff’s counsel demonstrates, this assertion is contradicted by the very medical records that defendant’s expert reviewed.

Notably, the reports of claimant’s treating physicians document, over a course of nearly a month, the persistence of radiating pain in claimant’s neck and back. Several weeks after claimant’s accident, his family physician, Dr. Grigoran, performed a physical examination which resulted in an assessment of “cervical radiculopothy.” Upon Dr. Grigoran’s referral to a neurologist, Dr. Kahn, claimant was examined again. Despite having undergone weeks of conservative treatment, claimant was still suffering from “frequent” neck and back pain, accompanied by “numbness”. A cervical compression test was “positive” for “radicular symptomology.” So, too, the results of a Spurling test were reported as “positive”.

In light of theses symptoms and test results, Dr. Kahn’s diagnosis included findings of “Cervical/Lumbar radiculopothy,” and “Cervical radiculitis.” His recommendations included the performance of EMG/NCS tests of the cervical/lumbar spine and upper/lower extremities “to elucidate the degree and location of compression on existing nerve roots and peripheral nerves.” Not surprisingly, the electro-diagnostic test results revealed “an abnormal study, consistent with a left C5-6 and right L4-5 and L5-S1 radiculopothy.”

When such test results are viewed together with claimant’s well documented medical history, it is difficult to accept, at face value, the peer review doctor’s factual assumption that he found no evidence of “persistent radicular symptoms” which may have justified Dr. Kahn’s [*5]decision to recommend electro-diagnostic testing. Moreover, in the peer doctor’s description of the accepted standards and protocols for electro-diagnostic testing, defendant’s peer review doctor acknowledges that such tests may be medically appropriate for patients whose radicular symptoms “are persistent or unresponsive to initial conservative treatments.”

In the face of the medical record evidence, cited above, and the absence of


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proof of a more definitive, clear cut standard for prescribing electro-diagnostic tests, plaintiff’s opposition makes a convincing case that defendant’s moving papers fail to meet its burden. To a significant extent, the peer review doctor’s opinion rests upon conclusory assumptions and disputed or incorrect facts. Consequently, such an opinion, by itself, is insufficient to prove defendant’s entitlement to judgment as a matter of law on its lack of medical necessity defense. In these circumstances, the absence of opposing expert proof from plaintiff is immaterial.

Finally, two other issues need to be addressed. The Court concludes that defendant’s proof of mailing of its denials is sufficient, and that its fee schedule defense was established, through proper proof, as a matter of law. Plaintiff’s opposition failed to demonstrate the existence of a triable issue on either point. Accordingly, at any subsequent trial of this action, defendant need not adduce proof of timely mailing of its denials, or adduce further proof of the fee schedule reduction. However, the issue of medical necessity will need to be tried.



Dated: April 1, 2011