June 3, 2016

Ther-Ox Home Care, Inc. v Praetorian Ins. Co. (2016 NY Slip Op 50869(U))

https://www.beynensonlaw.com/case-law/ther-ox-home-care-inc-v-praetorian-ins-co-2016-ny-slip-op50869u/

Court: Appellate Term, Second Department
Decided: June 3, 2016
Citation: 2016 NY Slip Op 50869(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Ther-Ox Home Care, Inc. v Praetorian Ins. Co., 2016 NY Slip Op 50869(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 doctor's affidavit failed to rebut the insurer's peer review finding the supplies medically unnecessary. The Civil Court denied the insurer's summary judgment motion and limited the trial issue under CPLR 3212 (g) to medical necessity. The sworn peer review supplied a factual basis and medical rationale for finding the supplies unnecessary, while the opposing affidavit did not meaningfully address its conclusions. The provider did not challenge the 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 motion dismissing the assigned no-fault complaint.

Reported in New York Official Reports at Ther-Ox Home Care, Inc. v Praetorian Ins. Co. (2016 NY Slip Op 50869(U))

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

Ther-Ox Home Care, Inc., as Assignee of LANNIE AMBROSE, Respondent,
against
Praetorian Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 9, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s 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 defendant’s motion for summary judgment dismissing the complaint but, in effect, limited the issues for trial pursuant to CPLR 3212 (g), finding that the only remaining issue for trial was medical necessity. As limited by its brief, defendant appeals from so much of the order as denied its motion.

In support of its motion, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the supplies at issue. In opposition to the motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is 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 Dept, 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 Dept, 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 Dept, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: June 03, 2016

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

Held the insurer entitled to summary judgment because its sworn peer review set forth a factual basis and medical rationale, and the provider's doctor's affidavit failed to meaningfully refer to or rebut its conclusions.

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.

Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
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

Lynbrook Med. of NY, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51226(U))The insurer's peer review established lack of medical necessity, and the provider submitted no medical evidence to rebut it.
Park Slope Med. v Praetorian Ins. Co. (2013 NY Slip Op 50761(U))The provider's medical affirmation failed to rebut the insurer's peer review finding that the supplies were superfluous to existing therapy.
Manhattan Med. Imaging, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51541(U))The insurer's unrebutted peer review supplied a factual basis and medical rationale establishing lack of medical necessity.
Van Courtland Med. Care, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 52013(U))The insurer's unrebutted peer review established lack of medical necessity and warranted dismissal of the claim at issue on appeal.
Theracare & Wellness, P.T., P.C. v Great N. Ins. Co. (2016 NY Slip Op 51429(U))The insurer's unrebutted IME report established a lack of medical necessity for the treatment at issue.