April 26, 2011

We Do Care Med. Supply, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 50783(U))

https://www.beynensonlaw.com/case-law/we-do-care-med-supply-p-c-v-american-tr-ins-co-2011-ny-slip-op50783u/

Court: Appellate Term, Second Department
Decided: April 26, 2011
Citation: 2011 NY Slip Op 50783(U) · 31 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

We Do Care Med. Supply, P.C. v American Tr. Ins. Co., 31 Misc 3d 140(A), 2011 NY Slip Op 50783(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 that the medical supplies lacked medical necessity. 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 complaint. The IME report set forth a factual basis and medical rationale for the doctor's determination, and the provider did not rebut the insurer's showing. The Civil Court had implicitly found under CPLR 3212 (g) that the insurer timely denied the claim on medical-necessity grounds, a finding the provider did not challenge. The insurer therefore was entitled to dismissal rather than a trial on medical necessity.

Reported in New York Official Reports at We Do Care Med. Supply, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 50783(U))

[*1]

We Do Care Med. Supply, P.C. v American Tr. Ins. Co.

2011 NY Slip Op 50783(U) [31 Misc 3d 140(A)]

Decided on April 26, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 26, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
.

We Do Care Medical Supply, P.C. as Assignee of FREDDIE WATKINS, Respondent, NO~ 2010-771 Q C
against
American Transit Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered February 25, 2010. 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, without 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court found that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claim and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, an independent medical examination report which set forth a factual basis and a medical rationale for the doctor’s determination that there was a lack of medical necessity for the medical supplies at issue. Defendant’s showing that such supplies were not medically necessary was not rebutted by plaintiff.

In light of the foregoing, and the Civil Court’s implicit CPLR 3212 (g) finding that defendant had timely denied the claim based on a lack of medical necessity, a finding which plaintiff does not challenge, defendant’s cross motion for summary judgment dismissing the complaint should have been 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, 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 [*2]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., Weston and Golia, JJ., concur.
Decision Date: April 26, 2011

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 IME report set forth a factual basis and medical rationale for lack of medical necessity of the supplies 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

We Do Care Med. Supply, Inc. v American Tr. Ins. Co. (2011 NY Slip Op 50784(U))The insurer's unrebutted peer reviews established that the medical supplies lacked medical necessity.
SI Med. & Surgical Supply, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50054(U))The insurer's peer reviews established lack of medical necessity for the supplies, and the provider did not rebut that showing.
Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50189(U))The insurer's peer reviews established lack of medical necessity, and the provider failed to offer a meaningful rebuttal.
Iav Med. Supply, Inc. v Progressive Ins. Co. (2010 NY Slip Op 52155(U))The insurer's peer review established lack of medical necessity for the supplies, and the provider did not oppose the cross motion.
New Way Med. Supply Corp. v GEICO Ins. Co. (2014 NY Slip Op 50880(U))The insurer's peer reviews were unrebutted because appellate review was limited to the papers Civil Court considered.