Category Archives: Medical Necessity

Chiros and MDs

Written on January 20, 2010 by Dave Gottlieb
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Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co.,2010 NY Slip Op 50053(U) (Dist Ct Nassau County, First Dist)

Expert testimony is required to establish what the generally accepted medical/professional practices are and how ordering the tests or treatment departed from generally accepted medical/professional standards. Dunn v. Khan, 62 AD3d 828 (2nd Dept. 2009); and Lyons v. McCauley, 252 AD2d 516 (2nd Dept. 1998).

Chiropractics is separate and distinct from the practice of medicine so that a physician’s standard is not controlling upon a chiropractor in the practice of his or her profession. Taormina v. Goodman, 83 AD2d 1018 (2nd Dept. 1978). In determining [*4]whether treatment performed or tests ordered by a chiropractor are medically necessary, the court must determine the generally accepted standard of care in the field of chiropractics and whether the providing the treatment or ordering of the tests was in accordance with those generally accepted chiropractic standards. 1B NY PJI3d 2:150, at 802 (2009).

To qualify as an expert, the witness must possess “…the requisite skill, training, education, knowledge or experienced from which it can be assumed that the information imparted or the opinion rendered is reliable (citations omitted).” Matott v. Ward, 48 NY2d 455, 460 (1979); and de Hernandez v. Lutheran Medical Center, 46 AD3d 517 (2nd Dept. 2007). When a doctor testifies outside his area of expertise, the party calling the doctor must lay a foundation establishing the doctor is familiar with the generally accepted practice in the area in question to lay a proper a foundation for the expert’s opinion. Shectman v. Wilson, -A.D.3d-, 2009 WL 4674047 (2nd Dept. 2009); and Geffner v. North Shore University Hosp., 57 AD3d 838 (2nd Dept. 2009).

State Farm had a neurologist perform the peer review and called a neurologist to testify the cervical and lumbar MRIs ordered by a chiropractor were not medically necessary. Even though the parties stipulated Dr. Seliger was an expert, his field of expertise is neurology not chiropractics. State Farm did not establish Dr. Weiland, the peer reviewer, or Dr. Seliger, the re-peer, were familiar with generally accepted chiropractic practices or the generally accepted reasons why a chiropractor would order a patient to have a cervical or lumbar MRI.[FN2] Therefore, Dr. Weiland’s peer review report and Dr. Seliger’s testimony are insufficient to rebut the presumption of medical necessity that attaches to a timely filed no-fault claim.


Congrats to Ms. Erin Stamper on her her first published decision.  Though it was mentioned in a comment, it’s worth mentioning here.

That aside, JT told you so, proving to some extent that you really don’t want your attorney to blow sunshine up your crack.

[last note:  It looks like the Court's cite for Geffner is off by a number.  It should be 57 AD3d 839.]

Experts, Medical Necessity, no fault law
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Re-Peers, Depositions of Peers, and Some Questions

Written on December 2, 2009 by Dave Gottlieb
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A couple of months ago I tried to do some research on 3117(a)(4).  I was more or less trying to understand the impetus behind the provision.  As it turns out, I’m terrible at researching this.  I had a research librarian trying to help me out and I really couldn’t get anything on it.  That said, I’m pretty sure it is a patient treating mechanism, not a money saving mechanism.  The only reason to have a rule that allows for doctors’ depositions to be used at trial is to keep them out of court and in their offices, treating patients.  Lately, a few insurance companies have been using it as a money saving mechanism.  They have one doctor in their (ins co lawyer’s) office all day doing depositions for various cases–the doctors get paid a fixed (lower) rate, and the insurance companies don’t have to pay the doctors to appear at trial.  At trial, the insurance company lawyer reads the deposition into the record.  There is no doubt that CPLR R. 3117(a)(4) is being used as a money saving mechanism.  From experience, I can tell you that the doctors are available to testify.  There are days where they are in court to testify on over five cases for various insurers.  Do I blame them?  No, everyone needs to make a living. The point is, they aren’t treating patients.  The depositions aren’t allowing them to treat more patients.  They still come to court and testify on cases where depositions weren’t held.
Like I said, and I could be wrong (but I doubt it) CPLR R. 3117(a)(4) was not intended to be a money saving mechanism.

Is this something a party really wants to do?  Depositions are a completely different animal than trials.  It’s part of discovery.  Accordingly, there is a lot of leeway.  All those questions that you could never get away with at trial; you can ask them.  The questions need only be relevant.  If the insurance company refuses to allow their doctor to answer and bust the deposition, well, that will be their problem.  There is a lot of interplay between IME doctors, Peer Review doctors, the vendors that work in-between the doctors and the insurance companies.  The insurance companies play a role as well. Do you really want these questions asked?  Do you want the answers memorialized?  I’d guess no.  But, I could be wrong.  In the end, it could wind up costing far more than it would save.

Using this rule is a ballsy move.  One that most parties wouldn’t make but for desperation.  We can all agree that a jury wouldn’t like it.  Would a Judge?  Would anyone feel comfortable telling the trier of fact, especially one that went to law school, and one who is smarter than your average Joe that, “Yes your honor, I didn’t think it important that you see the witness.  No, you don’t have to worry about the witness’ demeanor.  It’s fine, trust me”. 

Feel free to comment.  If anyone has some insight into the legistlative history of 3117(a)(4), speak up.

If you wind up at one of these depositions, you’ll want to ask questions.  To help you along, here is a list of questions.  Some are stupid, others aren’t.  Feel free to add more in the comments.

  • How many times did you take the boards?
  • Med School grades
  • Has an insurance company ever asked you to change one of your reports?
  • Where did you get the journal cites for your reports?
  • Do you subscribe to any journals?  Which ones?
  • How much do you make from peers/IMEs/testifying
  • Tax records
  • Bank records
  • Has an insurance company or its representative ever withheld records?
  • Has Has an insurance company or its representative ever altered records?
  • How are the peer reviews/IMEs scheduled?
  • Who schedules them?  Insurance Company or Vendor?
  • Do you receive instructions before the peer/IME?  What are they
  • Is there a cover letter?  If so what does it say?
  • Are there any vendors or insurance companies you won’t work for?  If so, why?
  • Has an insurance company ever instructed you on how to testify?

I’ll add more as I think of them.  Add more in the comments if you want.

Appellate Division, Depositions, Medical Necessity, progressive
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New Decisions From the Appellate Term, 2nd

Written on November 12, 2009 by Dave Gottlieb
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Exclusive Med. Supply, Inc. v Mercury Ins. Group, 2009 NY Slip Op 52273(U) (App. Term, 2nd, 2009)

In support of defendant’s motion for summary judgment dismissing the complaint, defendant annexed an affirmed peer review report by a doctor as well as an affidavit executed by the chiropractor who performed the second peer review. Since the foregoing documents set forth a factual basis and medical rationale for the peer reviewers’ opinions that the medical equipment provided was not medically necessary, defendant established, prima facie, a lack of medical necessity for the equipment in question (see e.g. 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 [*2]Dists 2009]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). As plaintiff failed to submit any evidence to rebut defendant’s showing of a lack of medical necessity and as plaintiff’s objections to defendant’s papers lack merit, defendant’s motion should have been granted (see e.g. Delta Diagnostic Radiology, P.C., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U]; 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 Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]; see also 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]; PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Gentle Care Acupuncture, P.C. v Raz Acupuncture, P.C., 2009 NY Slip Op 52274(U) (App. Term, 2nd, 2009)

“[W]here medical services are rendered by an independent contractor, the billing provider may not maintain an assigned first-party no-fault action, since it is not a provider’ within the [*2]meaning of the insurance regulations, and hence no-fault benefits are not assignable to it (Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]). Further, such defense is nonwaivable and not subject to the preclusion rule (see Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854 [2003]; Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52, supra)” (M.G.M. Psychiatry Care P.C. v Utica Mut. Ins. Co., 12 Misc 3d 137[A], 2006 NY Slip Op 51286[U] [App Term, 2d & 11th Jud Dists 2006]).

In the instant case, since the claim forms do not disclose the relationship between Raz Acupuncture, P.C. and the treating acupuncturist, the claim forms are not dispositive on the issue of whether the treating acupuncturist was an independent contractor or an employee of Raz Acupuncture, P.C. Moreover, the acupuncturist’s affidavit, relied upon by defendant, was insufficient to prove, prima facie, that the acupuncturist was an independent contractor (see Bhanti v Brookhaven Mem. Hosp. Med. Ctr., 260 AD2d 334 [1999]). As a result, the branch of defendant’s motion seeking summary judgment upon the third and fourth causes of action was properly denied, and the order, insofar as appealed from, is affirmed.


Bath Med. Supply, Inc. v Harco Natl. Ins. Co., 2009 NY Slip Op 52278(U) (App. Term, 2nd, 2009)

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that it had timely denied plaintiff’s claim based upon the assignor’s eligibility for workers’ compensation benefits. The District Court dismissed the complaint and referred the matter to the Workers’ Compensation Board. This appeal by plaintiff ensued.

Contrary to plaintiff’s contention, the Workers’ Compensation Board has the authority to determine whether plaintiff’s assignor is entitled to Workers’ Compensation benefits (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75 [App Term, 9th & 10th Jud Dists 2009]). However, the District Court should not have dismissed the complaint and referred the [*2]matter to the Workers’ Compensation Board but, rather, should have held plaintiff’s motion in abeyance. Accordingly, the order is reversed, the complaint reinstated and plaintiff’s motion remitted to the District Court to be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law.

App Term 2nd, Generally Accepted Medical Pracitce, Mailing, Medical Necessity, Peer Reviews, Summary Judgment
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The good stuff

Written on November 5, 2009 by Dave Gottlieb
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New decisions.

Radiology Today, P.C. v GEICO Ins. Co., 2009 NY Slip Op 52208(U) (App. Term, 2nd, 2009)

In support of its motion, defendant submitted the affidavit of a manager employed by the independent medical review service retained by defendant to schedule and conduct IMEs, which affidavit sufficiently set forth the standard office practice and procedure for the generation and mailing of IME notices designed to ensure that said notices were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; cf. Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). The affirmations and affidavits of the medical professionals who were to perform the IMEs established that plaintiff’s assignor failed to [*2]appear for said IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Tuncel v Progressive Cas. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant’s unopposed motion for summary judgment dismissing the complaint should have been granted.

Richmond Radiology, P.C. v GEICO Ins. Co., 2009 NY Slip Op 52210(U) (App. Term., 2nd, 2009)

Contrary to plaintiff’s contention on appeal, the doctor performing the peer review did not conclude that he had insufficient information upon which to base a conclusion. Instead, the affirmed report raised a triable issue of fact because “the report clearly indicates that the pertinent [treating] physician’s reports and other documentation had been requested and provided for the purpose of conducting a peer review, and the conclusion of lack of medical necessity is based on the peer reviewer’s opinion, in effect, that there was no substantiation in the reports and documents reviewed of medical necessity for the [services] provided” (Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists 2005]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

New Wave Oriental Acupuncture, P.C. v Government Employees Ins. Co., 2009 NY Slip Op 52211(U) (App. Term, 2nd, 2009)

Contrary to plaintiff’s contention, the affidavit submitted by defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for [*2]defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive (see AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant raised a triable issue of fact and plaintiff’s motion for summary judgment should have been denied.

Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 2009 NY Slip Op 52222(U) (App. Term., 2nd, 2009)

Contrary to defendant’s contention, although plaintiff’s claim was submitted more than 45 days after the services at issue were rendered, defendant waived its reliance on the 45-day rule (Insurance Department Regulations [11 NYCRR] § 65-1.1) as a basis to deny the claim because defendant had failed to communicate to plaintiff, as required by the No-Fault Regulations, that late submission of the proof of claim will be excused where the applicant can provide a reasonable justification for the late submission (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]; SZ Med. P.C. v Country-Wide Ins. Co., 12 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2006]). Further, defendant failed to demonstrate that discovery was needed in [*2]order to show the existence of a triable issue of fact (see CPLR 3212 [f]).

Tags: , 45 day rule, Dan Med, Denials, Fee Schedule, Geico, IME no show, Medical Necessity
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Strange Brew

Written on October 27, 2009 by Dave Gottlieb
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Boro Med. Supplies, Inc. v Country Wide Ins. Co., 2008 NY Slip Op 52698(U) (App. Term, 2nd, 2009)

Motion by appellant for leave to appeal to the Appellate Division from the order of this court dated February 8, 2008 denied as academic.

On the court’s own motion, reargument of the order and decision of this court in the above-entitled action, dated February 8, 2008, is granted and, upon reargument, the order and decision of this court dated February 8, 2008 are vacated and the following is substituted as the decision of the court:

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated October 17, 2006. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion, asserting,
inter alia, that the affidavits submitted by plaintiff were insufficient to support plaintiff’s motion for summary judgment and that plaintiff failed to submit a timely claim for reimbursement of benefits. The court denied plaintiff’s motion for summary judgment, holding that defendant raised triable issues of fact as to the denial of the claim and as to whether plaintiff timely mailed the bills to defendant. This appeal by plaintiff ensued.

Plaintiff established its prima facie entitlement to summary judgment by proof that it [*2]submitted the claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; see also Mani Med., P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008]). The burden, therefore, shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

The affidavit’ of defendant’s no-fault supervisor, submitted by defendant to establish that defendant timely denied plaintiff’s claim, was not signed. Thus, the affidavit’ is of no probative value and defendant failed to establish that it timely denied plaintiff’s claim within the 30-day prescribed period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]). As a result, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its proffered defense that the claim was submitted more than 45 days after the date of service.

Accordingly, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

And here is the decision it replaces.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, two affidavits by a corporate officer of plaintiff and various documents annexed thereto. The affidavits executed by the corporate officer stated in a conclusory manner that the documents annexed to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavits by plaintiff’s officer failed to demonstrate personal knowledge of the facts set forth therein and that, as a result, plaintiff failed to establish a prima facie case. The court below denied the motion on the ground that defendant raised a question of fact as to the timeliness of plaintiff’s mailing of the claim. Plaintiff appeals from the denial of its motion for summary judgment.

Since the affidavits submitted by plaintiff’s officer were insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment ( see Dan Med., P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc.3d 44 [App Term, 2d & 11th Jud Dists 2006] ). Consequently, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.

There is no reference to Dan Med in the new decision.  And right after the Appellate Division grants leave in Carothers v. Geico.  Weird.

Mani Med., P.C. v Eveready Ins. Co., 2008 NY Slip Op 52697(U) (App. Term, 2nd, 2009)

On the court’s own motion, reargument of the order and decision of this court, dated January 15, 2008, in the above entitled action, is granted and, upon reargument, the order and decision of this court dated January 15, 2008 are vacated and the following is substituted as the decision of the court:

***

Defendant argues that plaintiff failed to make a prima facie showing because plaintiff did not demonstrate that it possessed a valid assignment. Even assuming that a prima facie case requires proof of a valid assignment, where, as here, the claim forms stated that the assignor’s signature was on file,’ such a burden is satisfied, inasmuch as defendant did not timely take action to verify the existence of a valid assignment (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]). Since defendant raises no other issue with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

While plaintiff sought summary judgment, inter alia, upon its claim form dated December 23, 2002 in the sum of $746.01, the record is devoid of any proof of a denial of claim form corresponding to plaintiff’s $746.01 claim form. (We note that the supervisor of defendant’s no-fault department submitted an affidavit in opposition in which she stated that defendant received separate claims seeking the sums of $82.89 and $663.23.’ The sum of the foregoing two claims does not equal $746.01. However, two of the NF-10 denial of claim forms annexed to defendant’s opposing papers indicated that they denied separate claims seeking the sums of $82.89 and $663.12, the sum of which does equal $746.01. Defendant makes no attempt to explain this discrepancy.) As a result, plaintiff was entitled to summary judgment upon its claim for $746.01.

Further, with respect to plaintiff’s remaining claims, the court below held that the peer review reports submitted by defendant in opposition to plaintiff’s motion were inadmissible inasmuch as they failed to comply with CPLR 2106. Where, as here, the signatures appear to be affixed by stamp or generated by a computer, plaintiff’s assertion, in its reply papers, that such peer review reports did not constitute evidence in admissible form due to a failure to comply with CPLR 2106 would ordinarily raise an issue of fact that cannot be resolved on a motion for summary judgment (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; see also James v Albank, 307 AD2d 1024 [2003]). However, inasmuch as defendant’s counsel has submitted papers to this court in opposition to plaintiff’s motion for leave to appeal to the Appellate Division from the original order of this court dated January 15, 2008, (which motion has been rendered academic by the issuance of this decision and order), conceding that [t]he reports in question contain stamped signatures,’ and there is nothing in the record to indicate that the stamped signatures were placed on the reports by the doctor who performed the peer reviews or at his direction, it is our view that defendant failed to raise a triable issue of fact with respect to the claim at issue (see Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]).

Tags: , , 45 day rule, Dan Med, Denials, Medical Necessity, Prima Facie, no fault law
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This is what I was talking about

Written on October 24, 2009 by Dave Gottlieb
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Remember this post; down at the bottom.

Now consider Corwin v Heart Share Human Servs. of N.Y., 2009 NY Slip Op 07575 (App. Div., 2nd, 2009)

Furthermore, contrary to the defendants’ contention, the plaintiff’s motion was not premature, as the defendants failed to offer an evidentiary basis to suggest that discovery might lead [*2]to relevant evidence and that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff and the nonparty driver (see Kimyagarov v Nixon Taxi Corp., 45 AD3d 736). “[T]he defendants’ purported need to conduct discovery did not warrant denial of the motion since they already had personal knowledge of the relevant facts” (Abramov v Miral Corp., 24 AD3d 397, 398; see Fenko v Mealing, 43 AD3d at 856). “The mere hope or speculation that evidence sufficient to defeat a motion . . . may be uncovered during the discovery process is insufficient to deny the motion” (Lopez v WS Distrib., Inc., 34 AD3d 759, 760; see Marcel v Chief Energy Corp., 38 AD3d 502; Pina v Merolla, 34 AD3d 663).

So, for example, If a plaintiff makes a motion for summary judgment and the insurance company’s defense is medical necessity, fee schedule, IME no-show, EUO no-show, or the like, does it make any sense to deny plaintiff’s motion based upon a rule that a Summary Judgment motion is always premature if discovery outstanding.  Even if it is defendant’s motion for summary judgment, isn’t such a rule equally nonsensical.  Not in all cases.  In most cases.

Another decision:

Delacruz v Ostrich Cab Corp., 2009 NY Slip Op 07577 (App. Div., 2nd, 2009)

The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). During his examination of the plaintiff, the defendants’ orthopedic surgeon found restrictions in the range of motion of the plaintiff’s lumbar spine, which he described as “self-restricted.” However, he failed to explain or substantiate with any objective medical evidence the basis for his conclusion that the limitations that were noted were self-restricted (see Cuevas v Compote Cab Corp., 61 AD3d 812; Colon v Chuen Sum Chu, 61 AD3d 805; Torres v Garcia, 59 AD3d 705; Busljeta v Plandome Leasing, Inc., 57 AD3d 469). Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment without considering the sufficiency of the plaintiff’s opposition papers (see Cuevas v Compote Cab Corp., 61 AD3d 812; Coscia v 938 Trading Corp., 283 AD2d 538).

If the moving party does not meet it’s burden, the opposition papers could say “Mary had a little lamb, therefore the motion should be denied,” for all it matters.  Stole that phrase from Mr. Toell.  If on the other hand, the movant’s papers say “Mary had a little lamb, therefore the motion should be granted,” then the court should consider the merits, and deny the motion as being stupid.  Too many people don’t understand this.


Tags: , Discovery, Medical Necessity, no fault law
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App. Div. 4th

Written on October 6, 2009 by Dave Gottlieb
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Sunshine Imaging Assn./WNY MRI v Government Empls. Ins. Co., 2009 NY Slip Op 06984 (App. Div., 4th)

Plaintiff, as assignee of 14 patients to whom it provided radiological services, commenced this action seeking to recover no-fault benefits pursuant to the contract between each patient and defendant insurer. We conclude that Supreme Court properly denied plaintiff’s motion for summary judgment on the amended complaint. Although plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that the prescribed statutory billing forms were received by defendant and that defendant’s payment of no-fault benefits to plaintiff was overdue (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727, 728), defendant raised a triable issue of fact by submitting its denial of claim forms setting forth that the services for which plaintiff sought to recover no-fault benefits were not medically necessary (see Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313, 314; A.B. Med. Servs., PLLC, 39 AD3d at 780-781). Contrary to plaintiff’s contention, defendant is not precluded from denying the claims after the services were rendered on the ground of lack of medical necessity. Plaintiff’s assignors were entitled only to reimbursement for medically “necessary” expenses (Insurance Law § 5102 [a] [1]; seesee Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765). 11 NYCRR 65-1.1 [d]), and plaintiff assignee is subject to that lack of medical necessity defense (see Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765).

Contrary to plaintiff’s further contention, the court did not abuse its discretion in granting defendant’s motion to sever the 14 causes of action. “The decision whether to grant severance rests soundly in the discretion of the trial court and, on appeal, will be affirmed absent a demonstration of abuse of discretion or prejudice to a substantial right’ ” (Rapini v New Plan Excel Realty Trust, Inc., 8 AD3d 1013, 1014; see Soule v Norton, 299 AD2d 827, 828). [*2]Although this action was commenced “by a single assignee against a single insurer and all [causes of action] allege the erroneous nonpayment of no-fault benefits . . ., they arise from [14] different automobile accidents on various dates in which the [14] unrelated assignors suffered diverse injuries and required different medical treatment” (Poole v Allstate Ins. Co., 20 AD3d 518, 519).

H/T No Fault Defender

Tags: , , Appellate Division, Medical Necessity
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NEW DECISIONS

Written on September 5, 2009 by Dave Gottlieb
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Westchester Med. Ctr. v Progressive Cas. Ins. Co., 2009 NY Slip Op 32004(U) (Sup Ct, Nassau County)

Prime Psychological Servs., P.C. v Progressive Cas. Ins. Co., 2009 NY Slip Op 51868(U)(Civ Ct City NY, Richmond County)

Medical Necessity
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NEW DECISIONS

Written on June 6, 2008 by Dave Gottlieb
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Eden Med., P.C. v Progressive Cas. Ins. Co., 2008 NY Slip Op 51098(U) (App. Term, 2d)

Since defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

Turning to the merits of defendant’s cross motion for summary judgment, defendant established that it paid $182.18 towards plaintiff’s $3,247.19 claim and timely denied the balance on the ground that the services rendered were not medically necessary based on an affirmed peer review report. Since the peer review report submitted by defendant in support of its cross motion established prima facie that the services rendered by plaintiff were not medically necessary and [*2]plaintiff did not present any evidence refuting defendant’s prima facie showing, the court below properly granted defendant’s cross motion for summary judgment dismissing the complaint (see 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 Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Complete Med. Svcs. of N.Y., P.C. v MVAIC, 2008 NY Slip Op 51119(U) (App. Term, 2d)

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered February 8, 2007. The order granted plaintiff’s motion for summary judgment “to the extent [of] . . . determin[ing] that the affidavit of mailing of the claim forms establishes mailing of the forms to [defendant] insurer.”

Appeal dismissed.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action on March 13, 2007 (see Matter of Aho, 39 NY2d 241 [1976]; Anderson v Anderson, ___ AD3d ___, 2008 NY Slip Op 02944 [2d Dept 2008]; Woodhaven Assoc., Inc. v Woodhaven Blvd. Rest., Inc., 46 AD3d 679 [2007]).

Nagle Med. Plaza, P.C. v Allstate Ins. Co., 2008 NY Slip Op 51122(U) (App. Term, 2d)

Appeal dismissed as academic.

In this action by a provider to recover assigned first-party no-fault benefits, the court, in effect, denied plaintiff’s motion for summary judgment, finding that the requested relief was premature, and denied defendant’s cross motion for summary judgment. Plaintiff appealed from that part of the order which denied its motion for summary judgment.

Subsequent to the entry of the order appealed from, the Civil Court entered an order dated May 13, 2007 dismissing the action. The dismissal of the action rendered the instant appeal academic (see Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff’s appeal is dismissed.

Medical Necessity
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NEW DECISIONS

Written on June 2, 2008 by Dave Gottlieb
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Carle Place Chiropractic v New York Cent. Mut. Fire Ins. Co., 2008 NY Slip Op 51065(U) (Dist Ct Nassau County, First Dist)

The court first notes that, in a carefully worded paragraph, Ms. Absher attests that she is “familiar with the general business practices of New York Central today and in 2001. During 2001, as well as currently, it was/is New York Central’s general business practice to mail verifications and denials on the same date that they are generated.” [emphasis in original] (Absher Affidavit 1/9/08, p. 2) Conspicuously absent from Ms. Absher’s affidavit is any allegation that she is familiar with the Defendant’s record keeping or mailing practices as it existed in 2006, the year here in question. Ms. Absher clearly has not demonstrated her knowledge of such practices and procedures as they existed at the time here in question and cannot establish proper proof of mailing of the denials in question.

The above notwithstanding, the practice and procedure described by Ms. Absher, while it may be Defendant’s “standard office practice and procedure” Residential Holding Corp. v. Scottsdale Insurance Company, supra ., it is not one “used to ensure that items were properly addressed and mailed.” id.; See also: Nassau Insurance Company v. Murray, 46 NY2d 828, 414 NYS2d 117 (1978) ["office practice must be geared so as to ensure the likelihood that a notice ... is always properly addressed and mailed."]

In essence, Ms. Absher describes the procedure as an employee taking the denial form, placing it in an envelope which is in turn placed in a bin in a central location in the office, then taken to a bin in the Defendant’s mail room, the contents of which are subsequently taken from the mail room to the post office. When stripped of all of its excess verbiage, it appears that the Defendant’s mailing procedure is to place the denial form in an envelope and to have someone subsequently mail same. The fact that the envelope containing the denial form is handled by a number of the Defendant’s employees and makes a number of stops in the office before it is allegedly taken to the post office in no way ensures that the items are properly mailed.

Ms. Absher’s statements to the effect that “[t]he file maintained by the Defendant indicates that all of Defendant’s mailing procedures described are carried out in accordance with the procedures set forth above[,]” (Absher Affidavit 1/9/08, p. 7) and “I reviewed the Defendant’s computer log, and they accurately reflect … information for this claim, including the date the bills were received and the date the no-fault denials were mailed[,] (Absher Affidavit 1/9/08, p. 8-9) are, themselves, insufficient to establish the mailing of Defendant’s denial of claim forms. Westchester Medical Center v. Countrywide Insurance Company, 45 AD3d 676, 846 NYS2d 230 (2nd Dept. 2007); Hospital for Joint Diseases v. Nationwide Mutual Insurance Company, 284 AD2d 374, 726 NYS2d 443 (2nd Dept. 2001); Careplus Medical Supply Inc. v. Travelers Home and Marine Insurance Co., 7 Misc 3d 133(A), 801 NYS2d 231 (App.Term 2nd and 11th Jud. Dists. 2005) Such statements are conclusory and unsupported by any evidentiary proof. Moreover, these statements, based upon files and computer records which are not before this court, are hearsay and are not in admissible form. If the Defendant has such files and computer records, which adequately confirm the mailing of the denial of claim forms, then the Defendant has the obligation lay a proper foundation for such records, pursuant to CPLR §§ 4518 and 4539, and tender them in admissible form.

The Defendant relies upon the report of Dr. Thomas J. McLaughlin, who conducted a physical examination of the Plaintiff’s assignor on May 23, 2006, in an effort to establish the lack of medical necessity for the treatment in question. Dr. McLaughlin’s report, however, is “[f]atally missing … any mention of the applicable generally accepted medical/professional standard and the plaintiff’s departure therefrom.” American Chinese Acupuncture, P.C. v. State Farm Mutual Automobile Insurance Company, 18 Misc 3d 1125, 2008 NY Slip Op. 50205 (Civ. Ct. Richmond Co. 2008) The examination by the Defendant’s doctor notwithstanding, “its denial based on lack of necessity, … , was Conclusory [sic] unsupported by … an independent medical examination, setting forth a sufficiently detailed factual basis and medical rationale for the claim’s rejection (e.g. Choicenet Chiropractic P.C. v. Allstate Ins. Co., NYLJ, Mar. 7, 2003 [App Term, 2d & 11th Jud Dists]).” Amaze Medical Supply Inc. v. Eagle Insurance Company, supra .; See also: A.B. Medical Services PLLC v. Liberty Mutual Insurance Company, 10 Misc 3d 128, 809 NYS2d 480 (App. Term 2nd and 11th Jud. Dists. 2005)

AA Acupuncture Serv., P.C. v State Farm Mut. Auto. Ins. Co., 2008 NY Slip Op 51066(U) (Civ Ct City NY, NY County)

Therefore, the Appellate Term refused to affirm summary judgment even though it clearly thought that the plaintiff should not have pursued its claim when faced with the same evidence. If the Appellate Term thought the evidence of a staged accident was strong enough to consider sanctions against the plaintiff’s attorney for pursuing the claim but still refused to grant summary judgment to the defendant, then the only explanation is that there is a per se rule against summary judgment dismissing a claim based on staged accident. Absent a contrary decision in this Department, this Court, following A.M. Medical Services, denies defendant’s motion for summary judgment. Mountain View Coach Lines v Storms, 102 AD2d 663, 664, 476 NYS2d 918 (2d Dept 1984); People v Brisotti, 169 Misc 2d 672, 673, 652 NYS2d 206, 207 (App Term 1st Dept 1966); 545 West Co. v Schachter, 16 Misc 3d 431, 837 NYS2d 549 (Civ Ct, NY Cty, 2007).

Edit: For a full discussion of these cases check out the posts on CoverageCounsel here and here.

Generally Accepted Medical Pracitce, Mailing, Medical Necessity
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