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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/

Court
Appellate Term, Second Department
Decided
May 14, 2013
Citation
2013 NY Slip Op 50849(U) · 39 Misc 3d 146(A)
Posture
Trial
Outcome
Provider prevailed
Issues
Medical necessity Trial and evidence
Legal questions
Lack of medical necessity (see the maps)
Cite as
Radiology Today, P.C. v Travelers Ins. Co., 39 Misc 3d 146(A), 2013 NY Slip Op 50849(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 conclusory expert testimony failed to establish lack of medical necessity because it supplied no factual basis or medical rationale. At a nonjury trial limited to medical necessity, the insurer's expert identified a peer review report and opined that the radiology services were unnecessary. The Civil Court admitted the report only to establish its authorship, declined to consider its contents, and directed a verdict for the provider. Following A-Quality Med. Supply v GEICO Gen. Ins. Co., the Appellate Term, Second Department, explained that a peer review report is not subject to cross-examination and cannot prove lack of medical necessity at trial. The judgment for the provider was affirmed as supported by a fair interpretation of the evidence.

Reported in New York Official Reports at Radiology Today, P.C. v Travelers Ins. Co. (2013 NY Slip Op 50849(U))

[*1]
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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on May 14, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


PRESENT: : ALIOTTA, J.P., PESCE and RIOS, JJ
2011-779 K C.
Radiology Today, P.C. as Assignee of BRIANT JOSEPH, Respondent,

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.

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 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.

  • Appellate DivisionApp Div 9
  • Appellate TermApp Term 521
  • Trial courtsTrial 87
2022, Appellate Division: 2 decisions (2 Insurer's proof insufficient)2020, Appellate Division: 1 decision (1 Provider's rebuttal sufficient)2019, Appellate Division: 1 decision (1 Insurer's proof insufficient)2016, Appellate Division: 2 decisions (1 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2008, Appellate Division: 1 decision (1 Insurer's proof insufficient)2007, Appellate Division: 2 decisions (2 Insurer raised triable issue)2023, Appellate Term: 1 decision (1 Provider's rebuttal sufficient)2022, Appellate Term: 1 decision (1 Unrebutted, insurer prevails)2021, Appellate Term: 4 decisions (4 Unrebutted, insurer prevails)2020, Appellate Term: 5 decisions (1 Unrebutted, insurer prevails, 2 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 1 Trial error, new trial)2019, Appellate Term: 15 decisions (8 Unrebutted, insurer prevails, 4 Insurer's proof insufficient, 3 Trial error, new trial)2018, Appellate Term: 13 decisions (7 Unrebutted, insurer prevails, 2 Provider's rebuttal sufficient, 4 Trial error, new trial)2017, Appellate Term: 20 decisions (5 Unrebutted, insurer prevails, 7 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 7 Trial error, new trial)2016, Appellate Term: 28 decisions (16 Unrebutted, insurer prevails, 7 Provider's rebuttal sufficient, 3 Insurer raised triable issue, 2 Insurer's proof insufficient)2015, Appellate Term: 22 decisions (9 Unrebutted, insurer prevails, 9 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 2 Insurer's proof insufficient, 1 Trial error, new trial)2014, Appellate Term: 40 decisions (16 Unrebutted, insurer prevails, 22 Provider's rebuttal sufficient, 1 Insurer's proof insufficient, 1 Trial error, new trial)2013, Appellate Term: 57 decisions (40 Unrebutted, insurer prevails, 12 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 2 Insurer's proof insufficient, 2 Trial error, new trial)2012, Appellate Term: 76 decisions (54 Unrebutted, insurer prevails, 10 Provider's rebuttal sufficient, 2 Insurer raised triable issue, 5 Insurer's proof insufficient, 5 Trial error, new trial)2011, Appellate Term: 56 decisions (42 Unrebutted, insurer prevails, 6 Provider's rebuttal sufficient, 2 Insurer raised triable issue, 2 Insurer's proof insufficient, 4 Trial error, new trial)2010, Appellate Term: 66 decisions (50 Unrebutted, insurer prevails, 5 Provider's rebuttal sufficient, 9 Insurer raised triable issue, 2 Insurer's proof insufficient)2009, Appellate Term: 32 decisions (17 Unrebutted, insurer prevails, 2 Provider's rebuttal sufficient, 9 Insurer raised triable issue, 4 Insurer's proof insufficient)2008, Appellate Term: 29 decisions (14 Unrebutted, insurer prevails, 9 Insurer raised triable issue, 6 Insurer's proof insufficient)2007, Appellate Term: 9 decisions (3 Unrebutted, insurer prevails, 3 Insurer raised triable issue, 2 Insurer's proof insufficient, 1 Trial error, new trial)2006, Appellate Term: 20 decisions (1 Unrebutted, insurer prevails, 11 Insurer raised triable issue, 8 Insurer's proof insufficient)2005, Appellate Term: 16 decisions (6 Insurer raised triable issue, 10 Insurer's proof insufficient)2004, Appellate Term: 10 decisions (1 Insurer raised triable issue, 9 Insurer's proof insufficient)2003, Appellate Term: 1 decision (1 Insurer raised triable issue)2022, Trial courts: 6 decisions (4 Unrebutted, insurer prevails, 1 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2021, Trial courts: 2 decisions (1 Unrebutted, insurer prevails, 1 Provider's rebuttal sufficient)2017, Trial courts: 2 decisions (1 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2015, Trial courts: 1 decision (1 Unrebutted, insurer prevails)2014, Trial courts: 3 decisions (2 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2013, Trial courts: 2 decisions (1 Unrebutted, insurer prevails, 1 Trial error, new trial)2012, Trial courts: 7 decisions (4 Unrebutted, insurer prevails, 3 Insurer's proof insufficient)2011, Trial courts: 4 decisions (4 Insurer's proof insufficient)2010, Trial courts: 10 decisions (2 Unrebutted, insurer prevails, 7 Insurer's proof insufficient, 1 Trial error, new trial)2009, Trial courts: 5 decisions (2 Unrebutted, insurer prevails, 2 Insurer raised triable issue, 1 Insurer's proof insufficient)2008, Trial courts: 11 decisions (6 Unrebutted, insurer prevails, 5 Insurer's proof insufficient)2007, Trial courts: 5 decisions (1 Provider's rebuttal sufficient, 4 Insurer's proof insufficient)2006, Trial courts: 9 decisions (2 Unrebutted, insurer prevails, 1 Insurer raised triable issue, 6 Insurer's proof insufficient)2005, Trial courts: 9 decisions (2 Unrebutted, insurer prevails, 1 Insurer raised triable issue, 6 Insurer's proof insufficient)2004, Trial courts: 8 decisions (1 Unrebutted, insurer prevails, 1 Insurer raised triable issue, 5 Insurer's proof insufficient, 1 Trial error, new trial)2003, Trial courts: 1 decision (1 Insurer's proof insufficient)2026, Trial courts: 1 decision (1 Provider's rebuttal sufficient)2025, Trial courts: 1 decision (1 Unrebutted, insurer prevails)This decision
20052010201520202025
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, 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.
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