June 17, 2013

Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co. (2013 NY Slip Op 51034(U))

https://www.beynensonlaw.com/case-law/right-aid-diagnostic-medicine-p-c-v-geico-ins-co-2013-ny-slip-op51034u/

Court: Appellate Term, Second Department
Decided: June 17, 2013
Citation: 2013 NY Slip Op 51034(U) · 40 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co., 40 Misc 3d 127(A), 2013 NY Slip Op 51034(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 affirmed peer review established lack of medical necessity, and the provider did not rebut that showing. In the assigned no-fault action, the insurer established a timely denial and submitted a report supplying a factual basis and medical rationale for finding the services unnecessary. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint. In light of that determination, it reached no other issue.

Reported in New York Official Reports at Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co. (2013 NY Slip Op 51034(U))

[*1]

Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co.

2013 NY Slip Op 51034(U) [40 Misc 3d 127(A)]

Decided on June 17, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 17, 2013

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-2355 K C.

Right Aid Diagnostic Medicine, P.C. as Assignee of PREM BALKARAN, Respondent, —
against
GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings

County (Nancy M. Bannon, J.), entered May 13, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross 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 so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant’s cross motion papers established that defendant had timely denied the claim at issue (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]) based on a lack of medical necessity. In addition, defendant submitted an affirmed peer review report which set forth a factual basis and a medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the services at issue. As defendant’s showing that the services were not medically necessary was not rebutted by plaintiff, defendant’s cross motion should have been granted (see 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 & [*2]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 light of the foregoing, we reach no other issue.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: June 17, 2013

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 set forth a factual basis and medical rationale and was not rebutted by the provider, so the insurer's cross motion should have been granted.

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

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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 cross-motion papers established that it timely mailed its denial of the claim, though the result turned on its unrebutted peer review.

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.
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.

Similar decisions

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.
Diagnostic Radiographic Imaging v GEICO Gen. Ins. Co. (2014 NY Slip Op 50869(U))The insurer's unrebutted peer review reports established that the disputed services were not medically necessary.
New Life Med., P.C. v GEICO Ins. Co. (2012 NY Slip Op 51061(U))The provider's practitioner failed to meaningfully rebut two peer review reports establishing lack of medical necessity.
Ave P Rehab & Med. Plaza, P.C. v Geico Ins. Co. (2011 NY Slip Op 52301(U))The insurer's three affirmed peer review reports established lack of medical necessity, and the provider did not rebut that showing.
New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50419(U))The provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's cross motion for summary judgment.