May 14, 2013
Radiology Today, P.C. v Travelers Ins. Co. (2013 NY Slip Op 50849(U))
https://www.beynensonlaw.com/case-law/radiology-today-p-c-v-travelers-ins-co-2013-ny-slip-op50849u/
- Decided
- May 14, 2013
- Citation
- 2013 NY Slip Op 50849(U) · 39 Misc 3d 146(A)
- Posture
- Trial
- Outcome
- Provider prevailed
- Legal questions
- Lack of medical necessity (see the maps)
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.
Reported in New York Official Reports at Radiology Today, P.C. v Travelers Ins. Co. (2013 NY Slip Op 50849(U))
| Radiology Today, P.C. v Travelers Ins. Co. |
| 2013 NY Slip Op 50849(U) [39 Misc 3d 146(A)] |
| Decided on May 14, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and RIOS, JJ
2011-779 K C.
against
Travelers Insurance Company, Appellant.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered March 26, 2010. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $912.
ORDERED that the judgment is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held solely with respect to defendant’s defense of lack of medical necessity. Defendant’s expert witness identified her peer review report and conclusorily testified that the radiology services at issue were not medically necessary. Although the court allowed the peer review report into evidence for the limited purpose of showing that it was prepared by defendant’s expert witness, it did not consider the contents of the report. The court granted plaintiff’s motion for a directed verdict and awarded judgment to plaintiff, holding that defendant had not established a lack of medical necessity for the services at issue.
Since defendant’s expert’s testimony did not include a factual basis or medical rationale for her opinion, it was insufficient to establish that there was a lack of medical necessity for the services rendered (see A-Quality Med. Supply v GEICO Gen. Ins. Co., Misc 3d , 2013 NY Slip Op 23088 [App Term, 2d, 11th & 13th Jud Dists 2013]; PSW Chiropractic Care, P.C. [*2]v Maryland Cas. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51719[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Additionally, a peer review report, unlike a witness, is not subject to cross-examination and is not admissible by defendant to prove lack of medical necessity (see A-Quality Med. Supply, Misc 3d , 2013 NY Slip Op 23088). Thus, the Civil Court’s determination that defendant had not established that the services at issue were not medically necessary, could have been reached under a fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]).
As we find no basis to disturb the Civil Court’s findings, the judgment is affirmed.
Aliotta, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 2013
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.
Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?
This decision: Insurer's medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)
Affirmed judgment for the provider after trial because the insurer's expert testified conclusorily without a factual basis or medical rationale, and the peer review report was not admissible to prove lack of necessity.
Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 109 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- A-Quality Med. Supply v GEICO Gen. Ins. Co. (2013 NY Slip Op 23088) FollowedAn insurer's peer review report is inadmissible at trial to prove lack of medical necessity.
- PSW Chiropractic Care, P.C. v Maryland Cas. Co. (2011 NY Slip Op 51719(U)) FollowedThe insurer failed to prove lack of medical necessity at trial, and the record supported deference to the trial court's credibility findings.
Similar decisions
- Radiology Today, P.C. v Progressive Ins. Co. (2011 NY Slip Op 51724(U))The insurer's expert should have been permitted to testify although that expert did not prepare the peer review underlying the denial.
- A Khodadadi Radiology, P.C. v Travelers Prop. Cas. Ins. Co. (2008 NY Slip Op 50910(U))The insurer's proof established timely mailing of its denial and raised a factual issue concerning medical necessity.
- 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.
- Richmond Radiology, P.C. v Travelers Ins. Co. (2010 NY Slip Op 51964(U))The insurer's peer review supplied a factual basis and medical rationale for finding the assignor's testing medically unnecessary.
- Complete Radiology, P.C. v GEICO Ins. Co. (2012 NY Slip Op 50419(U))The treating physician's affirmed letter raised a triable issue of medical necessity and defeated the insurer's cross motion for summary judgment.