July 10, 2008

S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co. (2008 NY Slip Op 51537(U))

https://www.beynensonlaw.com/case-law/s-j-pahng-m-d-p-c-v-progressive-northeastern-ins-co-2008-ny-slip-op51537u/

Court: Appellate Term, Second Department
Decided: July 10, 2008
Citation: 2008 NY Slip Op 51537(U) · 20 Misc 3d 137(A)
Posture: Trial
Outcome: Insurer prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Medical necessity Trial and evidence
Legal questions: Lack of medical necessity (see the maps)

Cite as

S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 20 Misc 3d 137(A), 2008 NY Slip Op 51537(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

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 provider's challenge to an allegedly inadequate judgment failed because unrebutted peer-review testimony established lack of medical necessity. The disputed services were nerve testing of the assignor's upper and lower extremities. At the nonjury trial, the parties stipulated to the provider's prima facie case and proper, timely denials, and the insurer's doctor's deposition testimony was admitted under CPLR 3117 (a) (4). That testimony established medical nonnecessity for the services at issue on appeal, and the provider offered no rebuttal evidence. Applying the fair-interpretation-of-the-evidence standard for nonjury findings, the Appellate Term, Second Department, affirmed the judgment and rejected the provider's demand for a greater recovery.

Reported in New York Official Reports at S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co. (2008 NY Slip Op 51537(U))

[*1]

S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co.

2008 NY Slip Op 51537(U) [20 Misc 3d 137(A)]

Decided on July 10, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-756 Q C.

S.J. Pahng, M.D., P.C. a/a/o SSANG GUK JUNG, Appellant,
against
Progressive Northeastern Insurance Company, Respondent.

Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered May 18, 2007. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $33.55.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issue at trial was the medical necessity of nerve testing of the assignor’s upper and lower extremities. Before trial, the parties stipulated that plaintiff proved its prima facie
case, that defendant timely and properly denied the claims and that the claims for certain diagnostic testing were in dispute and had not been paid. The trial court entered into evidence the claim forms, denial of claim forms and the transcript of the deposition testimony of defendant’s peer review doctor (see CPLR 3117 [a] [4]). After trial, the court awarded judgment in the principal sum of $33.55 to plaintiff. This appeal by plaintiff ensued on the ground of inadequacy.

“A decision rendered by a court after a nonjury trial should not be disturbed on appeal unless it is clear that its conclusions could not have been reached under any fair interpretation of the evidence” (Ardmar Realty Co. v Building Inspector of Vil. of Tuckahoe, 5 AD3d 517, 518 [*2][2004]). Since the parties stipulated to plaintiff’s prima facie case, the burden shifted to defendant to proffer sufficient evidence in support of a defense (see West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d & 11th Jud Dists 2006]). The testimony of defendant’s peer review doctor established that there was a lack of medical necessity for the medical services which are the subject of this appeal. As plaintiff did not offer any rebuttal evidence to show that the services were medically necessary (see id.), the record does not support plaintiff’s contention that the judgment is inadequate. As a result, the judgment is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: July 10, 2008

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

Affirmed the minimal trial award because the insurer's peer reviewer's deposition testimony established lack of medical necessity for the nerve testing and the provider offered no rebuttal evidence.

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.

West Tremont Med. Diagnostic, P.C. v Geico Ins. Co. (2006 NY Slip Op 51871(U)) FollowedA diagnostic provider performing prescribed MRIs remains subject to a lack-of-medical-necessity defense.

Cited by

A label shows how the later decision treated this one.

Speciality Surgical Servs. v Travelers Ins. Co. (2010 NY Slip Op 50715(U)) FollowedThe insurer's unrebutted medical testimony and affirmed peer review report established that the services were not medically necessary.
Amato v State Farm Ins. Co. (2013 NY Slip Op 51113(U)) FollowedThe insurer's IME testimony established lack of medical necessity, and the provider offered no evidence that later treatment was necessary.
Provvedere, Inc. v Republic W. Ins. Co. (2014 NY Slip Op 50219(U)) FollowedThe insurer's unrebutted medical testimony, found wholly credible at trial, established that the traction units lacked medical necessity.
Metropolitan Med. Supplies, LLC v GEICO Ins. Co. (2012 NY Slip Op 51490(U))An insurer's medical expert may testify without having prepared the peer review, but must stay within the denial's stated basis.

Similar decisions

All Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2013 NY Slip Op 50252(U))The provider's medical necessity letter and testimony from an unrelated trial failed to rebut the insurer's psychological peer review.
Neomy Med., P.C. v Auto One Ins. Co. (2010 NY Slip Op 51727(U))The insurer's timely denial and supported peer review raised a medical necessity issue defeating summary judgment on the appealed claim.
PLP Acupuncture, P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 50491(U))The insurer's peer review report and acupuncturist's affidavit established lack of medical necessity, and the provider failed to rebut that showing.
Northshore Chiropractic Diagnostics, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51646(U))The provider's doctor's affidavit raised a factual issue on medical necessity despite the insurer's supported peer review reports.
Jcc Med., P.C. v Hereford Ins. Co. (2019 NY Slip Op 51100(U))The insurer rebutted the presumption of medical necessity, and the provider failed to prove the services were medically necessary.