A motion for summary judgment is denied pending disclosure

Metropolitan Diagnostic Med. Care, P.C. v A. Cent. Ins. Co., 2013 NY Slip Op 52246(U)(App. Term 2d Dept. 2013)

“In opposition to defendant’s motion, and in support of its cross motion to compel discovery, plaintiff demonstrated that it had requested from defendant, but had not received, the peer review report, the complete set of medical documentation relating to the assignor received by defendant and the complete set of medical documentation provided to defendant’s peer reviewer (see Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]). Under the circumstances of this case, summary judgment was premature (see CPLR 3212 [f]), and the branch of plaintiff’s cross motion seeking to compel discovery should have been granted.”

It appears that A. Central moved for summary judgment relatively quickly following receipt of an answer.  Furthermore, Metropolitan Diagnostic cross-moved for disclosure based relief in that motion sequence.  That is why “Under the circumstances”, Plaintiff was able to stave off summary judgment.  This should be contrasted to the line of cases where Plaintiff does not seek disclosure for 8-10 months following joinder of issue and Defendant then moves for summary judgment.  In that scenario, Plaintiff loses its motion and summary judgment is granted.

IME cut off substantiated for DME that was prescribed before IME cut-off but filled after IME cut-off

Total Equip., LLC v Mercury Cas. Co., 2013 NY Slip Op 52220(U)(App. Term 2d Dept 2013)

“In support of its motion for summary judgment, defendant submitted, among other things, an affirmed independent medical examination (IME) report, in which the doctor concluded, based on her December 3, 2009 independent orthopedic evaluation of the assignor, that the assignor’s injuries had resolved and that there was no need for durable medical equipment, testing or treatment. The report set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the supplies at issue.”

Based upon the IME report, defendant denied reimbursement of no-fault benefits as of December 18, 2009. While plaintiff argues that the prescription for the supplies was written prior to the IME, it is undisputed that the prescription was not filled until December 21, 2009, subsequent to the effective date of the denial. Consequently, the burden shifted to plaintiff to rebut defendant’s prima facie showing that there was a lack of medical necessity for the supplies at issue.”

So the medical necessity for post IME services is measured from when the service is acquired or used, not when it is prescribed.  This rule makes sense.

Another look at MUA

Drew De Marco, P.C. v Allstate Ins. Co., 2013 NY Slip Op 52212(U)(App. Term 1st Dept. 2013)

“[d]uring Dr. Portnoy’s redirect testimony, the trial court precluded the witness from testifying as an expert on MUA procedures based on his acknowledgment that he was not certified to perform MUA. The Court thereupon directed a verdict in favor of plaintiff.”

“Dr. Portnoy was qualified as a chiropractic expert. Thus, he need not have been certified as an MUA specialist to offer an opinion as to the medical necessity of the MUA procedures here at issue (see Matter of Solano v City of Mount Vernon, 108 AD3d 676, 677 [2013]). His lack of certification in this area goes to the weight to be accorded his testimony, not its admissibility (see Borawski v Huang, 34 AD3d 409, 410 [2006]).”  New trial ordered.

This was the situation in Solano:

“Here, the hearing officer’s determination is supported by substantial evidence. The petitioner first contends that Dr. Silverman was not qualified to give an opinion. However, we have held that, “[o]nce a medical expert establishes his or her knowledge of the relevant standards of care, he or she need not be a specialist in the particular area at issue to offer an opinion” (Texter v Middletown Dialysis Ctr., Inc., 22 AD3d 831, 831 [2005]). Here, upon stipulation, Dr. Silverman was qualified as a medical expert. Thus, he need not have been a specialist to offer an opinion as to the petitioner’s condition. Moreover, contrary to the petitioner’s arguments, Dr. Silverman’s testimony was consistent and supported by the medical evidence. The hearing officer was free to credit Dr. Silverman’s testimony more than the testimony of the petitioner’s treating physician and chiropractor”

So, even though Dr. Portnoy does not engage in voodoo MUA, his testimony could establish a prima facie lack of medical appropriateness if his testimony is consistent and supported my medical evidence.  I think Solano is something to look into in the arbitration context when someone other than Cerf, Sposta or Sntkoff is your expert.


The peer review was insufficient

Amherst Med. Supply, LLC v A. Cent. Ins. Co., 2013 NY Slip Op 51800(U)(App. Term 1st Dept. 2013)

“The peer review report and accompanying affidavit submitted by defendant’s chiropractor failed to set forth a factual basis or medical rationale for his stated conclusion that the medical supplies here at issue were not medically necessary. The peer reviewer’s bald assertion that “I do not find the need for . . . durable medical goods,” was insufficient to meet defendant’s prima facie burden of eliminating all triable issues as to medical necessity.”

This Court tends to scrutinize peer reports and rebuttals more than the Second Department.  Thus, while this Court will hold the providers to a higher burden to satisfy the Pan Chiro/CPT Medical test, the proof needed to shift the burden is accordingly higher.

Some substance to an IME cut off defense

Premier Health Choice Chiropractic, P.C. v Praetorian Ins. Co., 2013 NY Slip Op 51802(U)(App. Term 1st Dept. 2013)

“sworn independent medical examination (IME) report of its examining chiropractor, which set forth a factual basis and medical rationale for the chiropractor’s stated conclusion that the assignor’s injuries were resolved and that the chiropractic treatment giving rise to plaintiff’s no-fault claim lacked medical necessity.

Perhaps this is the first time that the Court has opined that a lack of medical necessity defense on an IME case requires proof that a factual basis and medical rational for showing that injuries were resolved.

What’s a boy to do?

Promed Durable Equip., Inc. v GEICO Ins., 2013 NY Slip Op 23283 (App. Term 2d Dept. 2013)

(A) The insufficient rebuttal

“In support of the branch of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for supplies furnished to plaintiff’s assignor on December 16, 2008, defendant submitted a peer review report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for these supplies, on the ground, among others, that these supplies were superfluous, given that the assignor had already been involved in a treatment plan which included physical therapy and rehabilitation, which treatment plan, the peer reviewer stated, was sufficient to restore the assignor to the assignor’s pre-accident comfort level. In opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone rebut, this determination”

(B) Errant Attorney

“In the instant case, the brief submitted on respondent’s behalf contained, among other things, pages denominated “Table of Authorities” and “Summary of the Argument” that merely state that these pages were “left blank intentionally.” The “Question Presented” stated only “WHAT’S A BOY TO DO?” The remainder of the respondent’s brief did not address the facts of this case or interpose any specific argument as to why the order from which defendant appealed should be affirmed. Based upon the above, and other statements in the respondent’s brief, we order Jonathan R. Vitarelli, Esq., Ilona Finkelshteyn, Esq., and counsel for defendant, to show cause why an order should or should not be made and entered imposing sanctions and costs, if any, against Jonathan R. Vitarelli, Esq., and Ilona Finkelshteyn, Esq.”

What’s a boy to do?  Well, “Girls just want to have fun”.

(C) From another blogger out there:  My Case


A snapshot in time saves 9 – Reversed (finally)

Amato v. State Farm Ins. Co., 30 Misc.3d 238 (Dis. Ct. Nassau Co. 2010), rev’d by Amato v State Farm Ins. Co., 2013 NY Slip Op 51113(U)(App. Term 2d Dept. 2013)

“Dr. Aordkian’s examination found the range of motion of Burrell’s cervical and lumbar spine to be essentially normal. The only objective finding he made was decreased sensation along the right leg.”

“Dr. Aordkian testified a trial Burrell’s condition would not improve even if she received additional chiropractic treatment.”

“An IME is a snapshot of the injured parties medical condition as of the date of the IME.”

“Dr. Aordkian testified that he did not review any reports or records relating to the treatment Burrell received after the IME. He was unaware of the reasons Burrell sought and obtained the treatment. He was unaware of the treatment provided. Therefore, the defendant failed to prove either a factual basis or a medical rationale for its determination the chiropractic treatment was unnecessary.”

“For the foregoing reasons, the court finds for the plaintiff.”


“It is undisputed that the IME had been conducted on September 8, 2005 and that the services at issue had been provided from January 3, 2006 to January 30, 2007. Defendant’s IME chiropractor testified that there was a lack of medical necessity for the chiropractic treatment at issue, which had been rendered after the IME, because, at the time of the IME, plaintiff’s assignor had reached “status quo ante.” Contrary to the holding of the District Court, after defendant made such a showing, plaintiff bore the burden of demonstrating, by a preponderance of the credible evidence, that the treatment at issue was medically necessary. Since plaintiff proffered no evidence, a finding that the assignor’s condition had worsened after the IME would be speculative, at best.”

“Accordingly, the judgment is reversed and the matter is remitted to the District Court for the entry of judgment in favor of defendant dismissing the complaint”

MUA services inconsistent with MUA guidelines – prima facie showing lack of medical necessity established

Synergy Med. v Praetorian Ins. Co., 2013 NY Slip Op 51047(U)(App. Term 1st Dept. 2013)

“Notably, defendant’s peer reviewer explained in some detail that the manipulation under anesthesia (“MUA”) procedures performed at plaintiff’s facility were not medically necessary according to the standards of protocol followed by the National Academy of MUA physicians.”

“The unsworn operative reports of plaintiff’s principal submitted with plaintiff’s attorney’s affirmation were without probative value (see Grasso v Angerami, 79 NY2d 813 [1991]). In any event, even if considered, the conclusory, fill-in-the-blanks findings set forth therein were insufficient to withstand summary judgment”

Definitely a plan of attack on MUA cases.

Triable issue of fact through another IME in a different specialty

Brooklyn Chiropractic & Sports Therapy, P.C. v A. Cent. Ins. Co., 2013 NY Slip Op 50904(U)(App. Term 2d Dept. 2013)

(1) “Defendant also submitted an affirmed report of an independent medical examination (IME) with respect to 11 of the 12 claims, and a peer review report with respect to the 12th, each of which set forth a factual basis and medical rationale for the conclusion that the services in question were not medically necessary.”

(2) “In opposition to defendant’s motion, plaintiff submitted an affirmed report of an IME, conducted by a different doctor one day after the IME performed by defendant’s doctor. The IME report submitted by plaintiff contradicted the findings of defendant’s IME report and was sufficient to raise a triable issue of fact as to the medical necessity of the 11 claims which had been denied based upon defendant’s IME report”

(3) “However, plaintiff failed to offer any medical evidence to rebut the conclusions of defendant’s peer review report, which established a lack of medical necessity for the 12th claim”

This is similar to Hillcrest v. State Farm, where an IME report defeated the findings of the peer review report.  Yet, note how the conflicting IME reports had not effect on the claim that was denied, based upon the peer report.

Unrebutted doctor’s testimony insufficient to prove the services lacked a medical necessity

Radiology Today, P.C. v Travelers Ins. Co.,  2013 NY Slip Op 50849(U)(App. Term 2d Dept. 2013)

“Since defendant’s expert’s testimony did not include a factual basis or medical rationale for her opinion, it was insufficient to establish that there was a lack of medical necessity for the services rendered (see A-Quality Med. Supply v GEICO Gen. Ins. Co., Misc 3d , 2013 NY Slip Op 23088 [App Term, 2d, 11th & 13th Jud Dists 2013]; PSW Chiropractic Care, P.C. [*2]v Maryland Cas. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51719[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Additionally, a peer review report, unlike a witness, is not subject to cross-examination and is not admissible by defendant to prove lack of medical necessity (see A-Quality Med. Supply, Misc 3d , 2013 NY Slip Op 23088). Thus, the Civil Court’s determination that defendant had not established that the services at issue were not medically necessary, could have been reached under a fair interpretation of the evidence”

So why bring the treating doctor to court?