November 26, 2013

Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co. (2013 NY Slip Op 52003(U))

https://www.beynensonlaw.com/case-law/right-aid-diagnostic-medicine-p-c-v-geico-ins-co-2013-ny-slip-op52003u/

Court: Appellate Term, Second Department
Decided: November 26, 2013
Citation: 2013 NY Slip Op 52003(U) · 41 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co., 41 Misc 3d 140(A), 2013 NY Slip Op 52003(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 unrebutted sworn peer review established lack of medical necessity for the billed services. Both parties' summary judgment motions had been denied, with medical necessity identified as the only issue for trial under CPLR 3212 (g). The insurer's sworn report set out a factual basis and medical rationale for the reviewer's determination. The provider failed to rebut that showing and did not challenge the Civil Court's finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the provider's assigned no-fault claims.

Reported in New York Official Reports at Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co. (2013 NY Slip Op 52003(U))

[*1]

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

2013 NY Slip Op 52003(U) [41 Misc 3d 140(A)]

Decided on November 26, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2778 Q C.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 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, the Civil Court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint, stating that the only issue for trial was the medical necessity of the services at issue (see CPLR 3212 [g]).

In support of its cross motion, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was no medical necessity for the services at issue. Defendant’s prima facie showing was not rebutted by plaintiff. Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d [*2]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]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 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 proof established lack of medical necessity and the provider failed to rebut it

Granted the insurer summary judgment because its sworn peer review report set forth a factual basis and medical rationale for lack of medical necessity, and the provider did not rebut that showing.

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.

Cited in this decision

A label shows how this decision treated the case it cites.

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.

Cited by

Boulevard Multispec Med., P.C. v Tri-State Consumer Ins. Co. (2014 NY Slip Op 24080)An IME nonappearance supports denial only if there is some relationship between the missed IME and the treatment at issue.

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.
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.
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.
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 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.