November 30, 2015

Throgs Neck Multicare, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51756(U))

https://www.beynensonlaw.com/case-law/throgs-neck-multicare-p-c-v-state-farm-mut-auto-ins-co-2015-ny-slipop-51756u/

Court: Appellate Term, Second Department
Decided: November 30, 2015
Citation: 2015 NY Slip Op 51756(U) · 49 Misc 3d 151(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Throgs Neck Multicare, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 151(A), 2015 NY Slip Op 51756(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2015)

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 medical affirmation failed to rebut the IME report and raised no triable issue of medical necessity. The insurer obtained summary judgment dismissing assigned no-fault claims based on an affirmed IME report and, for some services, the workers' compensation fee schedule. The provider's sole appellate contention concerned its doctor's opposing affirmation, which failed meaningfully to address the IME report's conclusions. It did not challenge the fee-schedule defense, leaving dismissal of those claims unchallenged. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, sustaining summary judgment for the insurer on the claims denied solely for lack of medical necessity.

Reported in New York Official Reports at Throgs Neck Multicare, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51756(U))

[*1]

Throgs Neck Multicare, P.C. v State Farm Mut. Auto. Ins. Co.

2015 NY Slip Op 51756(U) [49 Misc 3d 151(A)]

Decided on November 30, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : MARANO, P.J., GARGUILO and CONNOLLY, JJ.
2014-1569 S C

Throgs Neck Multicare, P.C. as Assignee of Esther Arias, Appellant,
against
State Farm Mutual Automobile Insurance Company, Respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated June 26, 2014. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s amended motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied solely on the ground of lack of medical necessity.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, asserting that it had timely and properly denied all of the claims at issue for lack of medical necessity, based on an affirmed report of an independent medical examination (IME). Defendant also asserted that some of the services at issue had been timely and properly denied on the additional ground that the claims were in excess of the workers’ compensation fee schedule. The District Court found that defendant had established both grounds, and granted defendant’s motion. On appeal, plaintiff does not address defendant’s fee schedule defense and, thus, in effect, plaintiff fails to challenge the dismissal of the claims which had been denied on this ground.

Contrary to plaintiff’s sole contention on appeal, the opposing affirmation of plaintiff’s doctor failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME report. Therefore, plaintiff failed to raise a triable issue of fact as to medical necessity (see e.g. Bronx Mega Care Med, PLLC v Federal Ins. Co., 48 Misc 3d 132[A], 2015 NY Slip Op 51060[U] [App Term, 9th & 10th Jud Dists 2015]; Amato v State Farm Ins. Co., 40 Misc 3d 129[A], 2013 NY Slip Op 51113[U] [App Term, 9th & 10th Jud Dists 2013]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is affirmed.

Marano, P.J., Garguilo and Connolly, JJ., concur.

Decision Date: November 30, 2015

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 dismissal of the claims denied for lack of medical necessity because the provider's doctor's affirmation failed to meaningfully refer to or rebut the affirmed IME report's 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

Bronx Mega Care Med, PLLC v Federal Ins. Co. (2015 NY Slip Op 51060(U))The provider's doctor's affirmation failed to meaningfully address or rebut the insurer's IME conclusions on medical necessity.
Amato v State Farm Ins. Co. (2013 NY Slip Op 51113(U))The insurer's IME testimony established lack of medical necessity, and the provider offered no evidence that later treatment was necessary.
Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U))The provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.

Similar decisions

Throgs Neck Multicare, P.C. v Mercury Cas. Co. (2016 NY Slip Op 51081(U))The provider's treating doctor's affirmation raised a triable issue of medical necessity by sufficiently rebutting the insurer's IME report.
Advanced Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 50454(U))The insurer's unrebutted IME evidence established that the services underlying the provider's third and fifth causes of action were unnecessary.
North Bronx Med. Health Care v NY Cent. Mut. Ins. Co. (2012 NY Slip Op 51658(U))The provider's medical affirmation failed to rebut the insurer's IME and peer review conclusions that the disputed services were unnecessary.
Midwood Total Rehabilitation Med., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 50931(U))The insurer established timely mailing of IME notices and denials and the assignor's failure to attend the scheduled examinations.
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.