In an indiscreet case which garnered a “u” cite, the Appellate Term, Second Department made its first foray into determining what evidence is sufficient to raise an issue of fact as to a service’s medical reasonableness in opposition to a well supported peer review. The case on point is Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co. 2009 NY Slip Op 50441(U)(App. Term 2d Dept. 2009). The pertinent portion of the opinion went as follows:
“[i]n response to defendant’s cross motion, plaintiff submitted an affidavit from Dr. Shapiro in which he stated that he disagreed with the peer review report and affidavit furnished by defendant because he concluded that the supplies provided were medically necessary. Since the affidavit of Dr. Shapiro demonstrated the existence of an issue of fact as to medical necessity”
It bears in mind that the “Dr. Shapiro” affidavit is boilerplate in nature, having seen a few of them. Yet, under the circumstances of this case, I cannot say the court was wrong in its holding.
Assume for argument sake that Defendant failed to annex the documents his expert relied upon in forming his file based review. This is probably a valid assumption knowing what these motions tend to look like. In this instance, the Court should have found that Defendant did not meet its burden, and should have actually granted Plaintiff summary judgment. A peer report in opposition to a summary judgment motion that does not disclose the peer documents the reviewer relied upon simply fails to raise a triable issue of fact. Yet, until the Appellate Term addresses that issue, it is fair to say that the Court really did not have a choice but to find that Plaintiff raised an issue of fact. Bewteen the lines, the court was asking how a Plaintiff could honestly oppose a file review without the file? Hopefully, the Court in the future will cite to Cariddi v. Hassan and skip the step of finding a medical provider’s conclusory affidavit to be sufficient to oppose a non-supported peer report.
I suspect that this is just the beginning of the development as to this discreet area of no-fault law.
I would add this remark. The trend in New York practice has been to transform summary judgment motions from the traditional of “issue finding” into an exercise in “issue determination”. In other words, the courts used to deny summary judgment motions should there be a specter of a factual issue lurking somewhere. Now, the motion court will determine the merits of the issue on a motion for summary judgment.
This above trend is remarkable since every lower court decision that discusses an SJ motion always cites to the Court of Appeals cases, which hold that even the specter of a triable issue of fact should defeat a summary judgment motion. Shakepearean overtones I suspect – appearance verses reality.
But in the modern realities of life, the courts are telling the litigants that if you want a plenary trial, you need to earn it. In no-fault we had this shoved down our throats through “Dan Medical” and “Contempt v. Geico” prior to “Delta v. Chubb” and “St. Vincent v. Geico.” In the analogous 5102(d) land, “Toure” and “Pommels” proved this point too well. The list goes on and on…
Thus, we shall see how the lack of medical necessity jurisprudence develops. I just hope it does not suffer the same inconsistencies that we have found in the “EUO” default contexts.
