December 16, 2011

Queens Med. Supply, Inc. v Geico Gen. Ins. Co. (2011 NY Slip Op 52284(U))

https://www.beynensonlaw.com/case-law/queens-med-supply-inc-v-geico-gen-ins-co-2011-ny-slip-op52284u/

Court: Appellate Term, Second Department
Decided: December 16, 2011
Citation: 2011 NY Slip Op 52284(U) · 34 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Medical necessity Timeliness and preclusion
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Queens Med. Supply, Inc. v Geico Gen. Ins. Co., 34 Misc 3d 127(A), 2011 NY Slip Op 52284(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 peer review report was admissible because its facsimile signature was placed by the reviewing doctor or at the doctor's direction. The provider sought summary judgment on its assigned no-fault claim, and the insurer cross-moved to dismiss for lack of medical necessity. The insurer established timely denial through standard office practices and procedures and submitted an affirmed report supplying a factual basis and medical rationale for finding the supplies unnecessary. The provider submitted no doctor's affirmation rebutting those conclusions and failed to raise a triable issue. Its objection to the electronic stamped signature did not render the report inadmissible on this record. The Appellate Term, Second Department, affirmed denial of the provider's motion and grant of the insurer's cross motion.

Reported in New York Official Reports at Queens Med. Supply, Inc. v Geico Gen. Ins. Co. (2011 NY Slip Op 52284(U))

[*1]

Queens Med. Supply, Inc. v Geico Gen. Ins. Co.

2011 NY Slip Op 52284(U) [34 Misc 3d 127(A)]

Decided on December 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 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
2010-2198 K C.

Queens Medical Supply, Inc. as Assignee of ROBERT MARTIN, Appellant,
against
Geico General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 27, 2010. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant had timely denied the claim at issue, on the ground of lack of medical necessity, 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]). Moreover, defendant annexed to its motion papers an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the supplies provided (see e.g. 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]).

In opposition to defendant’s cross motion for summary judgment, plaintiff failed to raise a triable issue of fact, since it did not submit an affirmation from a doctor rebutting the conclusions set forth in the peer review report (see 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]; 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]). While plaintiff asserted that the peer review report [*2]contained an electronic stamped facsimile of the peer reviewer’s signature and, as a result, the report was inadmissible, the record indicates that the facsimile signature was placed on the report by the doctor who had performed the peer review or at his direction (see Eden Med., P.C. v Eveready Ins. Co., 26 Misc 3d 140[A], 2010 NY Slip Op 50265[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; cf. Orthotic Surgical & Med. Supply, Inc. v GEICO Ins. Co., 20 Misc 3d 137[A], 2008 NY Slip Op 51540[U] [App Term, 2d & 11th Jud Dists 2008]; Radiology Today, P.C. v GEICO Ins. Co., 20 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2008]). Thus, the Civil Court properly granted defendant’s cross motion for summary judgment dismissing the complaint and denied plaintiff’s motion for summary judgment.

Accordingly, the order is affirmed.

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

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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 established lack of medical necessity, its facsimile signature was admissible because placed by or at the reviewer's direction, and no doctor's rebuttal was submitted, so summary judgment for the insurer was affirmed.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followedDistinguished or limited

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's affidavit established timely denial of the claim 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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U))The 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))The 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))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
Innovative Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 52321(U)) FollowedThe insurer established timely denials and lack of medical necessity, and the provider's chiropractor failed to rebut the insurer's showing.
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.
Eden Med., P.C. v Eveready Ins. Co. (2010 NY Slip Op 50265(U)) FollowedThe provider's unsupported assertion that a peer review report bore a stamped facsimile signature raised no factual issue.
Orthotic Surgical & Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51540(U)) Contrasted (cf., but see)The insurer's peer review failed to raise a medical-necessity issue because its facsimile signature lacked proof of the doctor's authorization.
Radiology Today, P.C. v GEICO Ins. Co. (2008 NY Slip Op 28259) Contrasted (cf., but see)The insurer's peer review report failed to raise a medical-necessity issue because its stamped signature lacked proof of the doctor's authorization.

Cited by

A label shows how the later decision treated this one.

Jamaica Med. Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50247(U)) FollowedThe peer reviewers' facsimile signatures were placed by the doctors or at their direction, defeating the provider's admissibility objection.
Quality Health Prods. v GEICO Gen. Ins. Co. (2013 NY Slip Op 51118(U)) FollowedThe insurer established lack of medical necessity for supplies to three assignors, and the provider offered no rebutting medical evidence.
Quality Health Prods. v GEICO Gen. Ins. Co. (2012 NY Slip Op 50415(U))The insurer's unrebutted peer review report supplied a factual basis and medical rationale for denying the supplies as medically unnecessary.
Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co. (2012 NY Slip Op 50394(U))The provider's doctor's affirmation failed to meaningfully address or rebut the insurer's peer review conclusions on medical necessity.
Alfa Med. Supplies v GEICO Gen. Ins. Co. (2012 NY Slip Op 51765(U))The provider's challenge to facsimile signatures failed because the peer reviewers placed the signatures on their reports or directed their placement.
Right Aid Diagnostic Medicine, P.C. v Geico Ins. Co. (2013 NY Slip Op 50901(U))The insurer's unrebutted peer reviews established lack of medical necessity and warranted summary judgment dismissing the provider's claims.

Similar decisions

Quality Health Prods. v Geico Gen. Ins. Co. (2011 NY Slip Op 52299(U))The insurer's peer review was admissible because its facsimile signature was placed by the reviewing doctor or at the doctor's direction.
Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co. (2013 NY Slip Op 52004(U))The insurer's unrebutted sworn peer review established that the services lacked medical necessity.
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.
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.
All Borough Group Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51417(U))The insurer's denial preserved its medical-necessity defense, and an unrebutted affirmed peer review established that the supplies were unnecessary.