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How far do we take collateral estoppel?January 10, 2017

Palisade Surgery Ctr. LLC v Allstate Prop. & Cas. Ins. Co., 2016 NY Slip Op 51824(U)(App. Term 1st Dept. 2016)

“The issue of medical necessity was not fully litigated or decided in the prior first-party no-fault action, and thus the doctrine of collateral estoppel does not bar defendant-insurer from raising the medical necessity defense in this action (see Kaufman v Eli Lilly & Co., 65 NY2d 449 [1985]; cf. Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002])”

I am left to believe that some provider prevailed somewhere.  Perhaps the issue of medical necessity was never reached?  I cannot make out what happened here, but I am curious what procedurally occurred to cause the provider to take an appeal on this one in a court where you are out at least $1500 for a reproduced record and brief.

One Response

  1. slick says:

    It’s my case.

    This case is the facility fee and anesthesia for MUA in NJ. There was another case to collect for the two co-surgeons. I won summary judgment for the two co-surgeons in another action. The Defendant opposed on the basis of medical necessity but never put in the peer review. Mainly, they argued that the denial was sufficient to establish the defense. Thereafter, they renewed/reargued and still lost. They also appealed and still lost.

    As a result, I moved for SJ in the facility and anesthesia case. They argued that the issue of medical necessity had not been fully litigated (even though they didnt establish that they didnt have a “full and fair opportunity” to present the peer). They also argued that the medical necessity of the facility is legally separate from the facility and anesthesia. I also argued that medical necessity for the facility is separate and distinct from the MUA.

    Anyone who wants to avoid collateral estoppel can use this case and point to additional records to show that it wasnt FULLY litigated.

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