September 27, 2016

Theracare & Wellness, P.T., P.C. v Great N. Ins. Co. (2016 NY Slip Op 51429(U))

https://www.beynensonlaw.com/case-law/theracare-wellness-p-t-p-c-v-great-n-ins-co-2016-ny-slip-op51429u/

Court: Appellate Term, Second Department
Decided: September 27, 2016
Citation: 2016 NY Slip Op 51429(U) · 53 Misc 3d 135(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Theracare & Wellness, P.T., P.C. v Great N. Ins. Co., 53 Misc 3d 135(A), 2016 NY Slip Op 51429(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 insurer's unrebutted IME report established a lack of medical necessity for the treatment at issue. The Civil Court denied the insurer's summary judgment motion but limited trial to medical necessity under CPLR 3212 (g). The insurer submitted an affirmed report from the physician who examined the assignor before the services were rendered. The report supplied a factual basis and medical rationale for the conclusion that further treatment was unnecessary, and the provider did not rebut that showing. Because the provider also 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 summary judgment dismissing the complaint.

Reported in New York Official Reports at Theracare & Wellness, P.T., P.C. v Great N. Ins. Co. (2016 NY Slip Op 51429(U))

[*1]

Theracare & Wellness, P.T., P.C. v Great N. Ins. Co.

2016 NY Slip Op 51429(U) [53 Misc 3d 135(A)]

Decided on September 27, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-952 K C

Theracare & Wellness, P.T., P.C., as Assignee of TELMO AVILA, Respondent,
against
Great Northern Insurance Company, Doing Business as CHUBB GROUP OF INSURANCE COMPANIES, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 19, 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 an affirmed report from the doctor who had performed an independent medical examination (IME) of plaintiff’s assignor before the services at issue had been rendered. The IME report set forth a factual basis and medical rationale for the doctor’s conclusion that there was a lack of medical necessity for further treatment. Defendant’s prima facie showing was not rebutted by plaintiff. 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, 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]).

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

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

Decision Date: September 27, 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

Granted the insurer summary judgment because an affirmed pre-treatment IME report gave a factual basis and medical rationale for finding further treatment unnecessary, and the provider did not rebut it.

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.

Similar decisions

Gaetane Physical Therapy, P.C. v Great N. Ins. Co. (2015 NY Slip Op 50698(U))The insurer's orthopedic IME report established lack of medical necessity, and the provider offered no medical evidence to rebut it.
Five S & A Rehab Pt, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51724(U))The insurer's affirmed IME report established lack of medical necessity, and the provider failed to rebut that showing.
Success Rehab P.T., P.C. v NY Cent. Mut. Fire Ins. Co. (2019 NY Slip Op 50572(U))The insurer's IME report established that the assignor's injuries had resolved and that the disputed services lacked medical necessity.
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.
Patchogue Physical Therapy, P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51444(U))The insurer's affirmed peer review report established an unrebutted lack of medical necessity for the billed services.