An insufficient rebuttal

Bronx Mega Care Med, PLLC v Federal Ins. Co., 2015 NY Slip Op 51060(U)(App. Term 2d Dept. 2015)

“In opposition, plaintiff failed to submit medical evidence sufficient to raise a triable issue of fact as to medical necessity (see e.g. Amato v State Farm Ins. Co., 40 Misc 3d 129[A], 2013 NY Slip Op 51113[U] [App Term, 9th & 10th Jud Dists 2013]). Contrary to the determination of the District Court, the opposing affirmation of plaintiff’s doctor failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see 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]). Consequently, defendant’s motion for summary judgment dismissing the complaint should have been granted”

What is the line between meaningfully refer to and not meaningfully referred?

On medical necessity

Huntington Regional Chiropractic, P.C. v Truck Ins. Exch., 2015 NY Slip Op 51068(U)(App. Term 2d Dept. 2015)

“In support of its motion, defendant submitted, among other things, two independent medical examination reports, one from a chiropractor and one from an orthopedist, which set forth a factual basis and a medical rationale for the examiners’ determination that there was a lack of medical necessity for the respective services provided (see Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50155[U] [App Term, 9th & 10th Jud Dists 2012]). However, the medical affidavits submitted by plaintiffs in opposition were sufficient to raise a triable issue of fact as to the medical necessity of the claims at issue”

Were there contemporaneous notes?  Was there anything in admissible form?  Did Defendant preserve appropriate hearsay and other evidentiary objections?

Protection of the MRI facilities on medical necessity motions

Medical Arts Radiological Group, P.C. v NY Cent. Mut. Fire Ins. Co., 2015 NY Slip Op 51035(U)(App. Term 2d Dept. 2015)

“Thus, when defendant moved for summary judgment dismissing the complaint, an automatic stay of disclosure went into effect pursuant to CPLR 3214 (b) (see Arts4All, Ltd. v Hancock, 54 AD3d 286 [2008]), and remained in effect (see Rockaway Med. & Diagnostic, P.C. v Utica Mut. Ins. Co., 19 Misc 3d 142[A], 2008 NY Slip Op 51033[U] [App Term, 2d & 11th Jud Dists 2008]) until February 8, 2013, when the Civil Court directed defendant to provide verified responses to plaintiff’s demands for discovery. Plaintiff demonstrated that there was a legitimate need for discovery with respect to defendant’s defense of lack of medical necessity (see Reilly, 269 AD2d at 582; Metropolitan Diagnostic Med. Care, P.C. v A. Cent. Ins. Co., 42 Misc 3d 133[A], 2013 NY Slip Op 52246[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). “Therefore, the court properly considered [plaintiff’s motion] during the pendency of [defendant’s] motion for summary judgment” (Reilly, 269 AD2d at 582).”

I do not think this would apply to an EMG provider or most conservative care providers.  Yet, MRI providers and DME providers cannot legitimately interpose meaningful rebuttal without any discovery.

Up up and away

Arnica Acupuncture, P.C. v Interboro Ins. Co.
Motion No: M-6186
Slip Opinion No: 2015 NY Slip Op 76558(U)
Decided on June 18, 2015
Appellate Division, First Department, Motion Decision
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This motion is uncorrected and is not subject to publication in the Official Reports.


June 18, 2015

Arnica Acupuncture, P.C. v Interboro Insurance Company

Leave to appeal from the Appellate Term granted, as indicated.

IME cut off not rebutted

Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 2015 NY Slip Op 50900(U)(App. Term 1st Dept. 2015)

“[defendant] establish[ed] that it timely denied the claims based on the independent medical examination (IME) report and follow-up report of its examining orthopedic doctor, which set forth a factual basis and medical rationale for her stated conclusion that the assignor’s injuries were resolved and that there was no need for further physical therapy treatment. In opposition, plaintiff failed to raise a triable issue. The affidavit of plaintiff’s treating physical therapist failed to meaningfully address the contrary findings made by defendant’s examining doctor, including the normal results of the range of motion testing of the assignor’s cervical and lumbar spine”

Medical necessity motion: the door has creaked open a little bit

Gaetane Physical Therapy, P.C. v Great N. Ins. Co., 2015 NY Slip Op 50698(U)(App. Term 2d Dept. 2015)

“In opposition to the motion, plaintiff submitted an affidavit by its principal, who did not indicate that she had examined the assignor or otherwise offer any medical evidence to rebut the conclusions set forth in the IME report. Thus, plaintiff failed to raise a triable issue of fact as to medical necessity”

This is the “know it all” affidavit that does not offer medical evidence for post IME services.  It is nice to see the Court taking a stand on this issue.

Ime cut off succeeds

V.S. Care Acupuncture PC v MVAIC, 2015 NY Slip Op 50350(U)(App. Term 1st Dept. 2015)

Defendant MVAIC made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied plaintiff’s first-party no-fault claims based on a sworn independent medical examination (IME) report of its examining acupuncturist, which set forth a factual basis and medical rationale for his stated conclusion that the assignor’s injuries were resolved and that there was no need for further acupuncture treatment (see Utica Acupuncture, P.C. v Interboro Ins. Co., 39 Misc 3d 139[A], 2013 NY Slip Op 50643[U] [App Term, 1st Dept 2013]). Contrary to the conclusion reached below, defendant was not required to provide notice of the scheduled IME to plaintiff provider (see 11 NYCRR 65-1.1; 65-3.5 [b],[c]; 65-3.6[b];”

I am partial to this case because of Utica v. Interboro.  Shout out to myself.  I also sense an application of the bolded language that will find its way in a brief to the Appellate Division, First Department eventually.

Lack of medical necessity defense upheld

Five Boro Med. Equip., Inc. v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 51888(U)(App. Term 1st Dept. 2014)

“Plaintiff’s opposing submission, consisting of an attorney’s affirmation unaccompanied by any medical evidence or other competent proof, was insufficient to raise a triable issue (see Munoz v Hollingsworth, 18 AD3d 278, 279 [2005]; CPT Med. Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). Plaintiff’s objections to the peer review doctor’s qualifications “go to the weight and not the admissibility of her opinion” (Solano v Ronak Med. Care, 114 AD3d 592 [2014]).”

Certain judges often play the qualification card.  It works when dealing with nurses and fee schedule coders.  It does not work with peer review doctors, unless the service being reviewed is of a sub-specialty that the Geffner rule would apply.

Another Geffner sighting

Tsimbler v Fell, 2014 NY Slip Op 08982 (2d Dept. 2014)

“In opposition, the plaintiff submitted the affidavit of a physician specializing in the field of internal medicine, which did not state whether the physician had any specific training or expertise in ophthalmology, or particularized knowledge as to the treatment of glaucoma. Moreover, the affidavit did not indicate that the physician had familiarized himself with the relevant literature or otherwise set forth how he was, or became, familiar with the applicable standards of care in this specialized area of practice. ” While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable'” (Behar v Coren, 21 AD3d 1045, 1046-1047, quoting Postlethwaite v United Health Servs. Hosps., Inc., 5 AD3d 892, 895; see Shectman v Wilson, 68 AD3d 848, 849). Thus, where a physician opines outside of his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered (see Shectman v Wilson, 68 AD3d at 850; Geffner v North Shore Univ Hosp., 57 AD3d 839Bjorke v Rubenstein, 53 AD3d 519, 520; Glazer v Lee, 51 AD3d 970, 971; Mustello v Berg, 44 AD3d 1018, 1019; Behar v Coren, 21 AD3d at 1046-1047). ”

The general rule is that a physician can opine on anything within the gambit of medicine. Yet, Geffner carved out an exception for what I can only conceive as areas within certain specialized areas of medicine, where the physician’s recitation of education and expertise has to be akin to that of a nurse opining on the service of a physician.  This of course runs counter to the DFS opinion letter (when they used to write opinion letters) which states a physician can comment on out of specialty services.

Mailing and the first time “objective” has landed in a medical rational case

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co., 2014 NY Slip Op 51766(U)(App. Term 1st Dept. 2014)

(1) The joy of mailing vendors

“In this regard, the affidavit submitted by an employee of Farmers Insurance Exchange, defendant’s claims administrator, failed to adequately describe its office mailing procedures (see Matter of Lumbermens Mut. Cas. Co. [Collins], 135 AD2d 373, 375 [1987]), merely stating that items placed in its “mail bin” are picked up by a nonparty entity – Pitney Bowes Services, Inc. (“Pitney Bowes”) – which brings the items on a daily basis to the post office. The affiant professed no personal knowledge of, nor did she attempt to describe, the procedures utilized by Pitney Bowes to assure timely and proper delivery”

(2) On medical necessity

“Moreover, even beyond defendant’s shortcomings in proof concerning the mailing issue, the report of defendant’s peer review acupuncturist failed to set forth sufficient facts or medical rationale for his stated conclusion that further acupuncture treatment of plaintiff’s assignor was not medically necessary. That the assignor may have subjectively reported during the course of the peer review examination that she “feels worse” after three months of acupuncture treatment did not, by itself and without any objective medical explanation by the peer reviewer, eliminate all triable issues regarding the medical necessity of continued acupuncture treatment.”

This one is interesting because the Court has finally held that an objective medical explanation is necessary to support a medical necessity defense or, contrariwise, prove that there is a medical rationale for further treatment in opposition to an insurance carrier’s examination.