Appellate Term Second Department expounds on sufficient medical rationale in DME case

Park Slope Med. v Praetorian Ins. Co.,  2013 NY Slip Op 50761(U)(App. Term 2d Dept. 2013)

Is there something about durable medical equipment that brings out the ire of Appellate Term Justices?  Last year, the First Department had something to say about DME.  Now a panel of judges, who in my opinion, are not all too friendly to the carriers had this to say:

“Defendant submitted a sworn 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 the medical supplies at issue, in that the supplies were superfluous, given that the assignor was already receiving three forms of therapy, which the peer reviewer stated was “more than adequate.” In opposition, plaintiff submitted an affirmation by a medical doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report”

A copy of a peer report is all that is needed

A-Quality Med. Supply v GEICO Gen. Ins. Co., 2013 NY Slip Op 23088 (App. Term 2d Dept. 2013)

“The Insurance Department Regulations require merely that a “copy” of a peer review report be produced to a provider upon written demand….  Moreover, the Insurance Department Regulations do not prescribe a format for a peer review report.  It is only when a peer review report is being submitted in support of or in opposition to a motion that it must be properly sworn or affirmed (see CPLR 3212 [b])”

“We note that, at trial, the issue of medical necessity is to be resolved based upon the testimony given by medical experts. 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. Indeed, admission of a peer review report into evidence as part of a defendant’s proof of lack of medical necessity may constitute impermissible bolstering of its expert’s testimony”

So, the peer review itself, if admitted into evidence, constitutes improper bolstering.  Also, “admissible form” is limited to a motion for summary judgment in opposition to a motion thereto.

“Deviation” does not need to be established with medical literature.

Mitrovic v Silverman, 2013 NY Slip Op 01465 (1st Dept. 2013)

While an expert affidavit cannot be speculative, there is no threshold requirement in an ordinary case, not involving a novel scientific theory, that a medical opinion regarding deviation be based upon medical literature, studies, or professional group rules in order for it to be considered. It can be based upon personal knowledge acquired through professional experience (see Diaz v New York Downtown Hosp., 99 NY2d 542, 545 [2002]; see also Limmer v Rosenfeld, 92 AD3d 609, 609 [1st Dept 2012]). The peer review article upon which defendants rely did not form a basis for their expert’s opinion because it was only submitted in defendant Dr Silverman’s reply paper’s. Moreover, such literature only affects the weight given to an expert’s opinion and does not dictate an outcome as a matter of law (see Marsh v Smyth, 12 AD3d 307, 311-313 [1st Dept 2004], Saxe, J. concurring).

Now maybe I am stretching, but is reliance on “Nir” as the only reason to defeat a medical necessity denial now arbitrary and capricious?

Malella and priority of coverage discovery disallowed

Pomona Med. Diagnostic P.C. v Adirondack Ins. Co., 2012 NY Slip Op 51165(U)(App. Term 1st Dept. 2012)

Defendant appeared to work under a novel theory that it could use discovery to figure out who is primary and, in the alternative, to find out if Plaintiff was fraudulentally incorporated.  Defendant’s attempt to obtain discovery on the first score was a loser, on the law.  Defendant’s attempt to obtain discovery on the second score was a loser, on the law.

“The defendant insurer’s motion to strike the notice of trial and compel discovery should have been denied. Insofar as defendant sought discovery pertaining to its affirmative defense that another insurance carrier was primarily liable, the information was immaterial and, in result, the demands were palpably improper (see Duhe v Midence, 1 AD3d 279 [2003]), since defendant cannot properly rely on this defense as a basis to deny plaintiff’s no-fault claim (see 11 NYCRR 65-3.12[b]; M.N. Denatal Diagnostics, PC v Government Empl. Ins. Co., 81 AD3d 541 [2011]). Nor has defendant set forth any case-specific allegations in support of its defense that plaintiff was fraudulently incorporated so as to justify discovery on this issue (cf. One Beacon Ins. Group, LLC v Midland Med. Care, PC, 54 AD3d 738 [2008]). Defendant “will not be allowed to use pretrial discovery as a fishing expedition when they cannot set forth a reliable factual basis for what amounts to, at best, mere suspicions” (Devore v Pfizer Inc., 58 AD3d 138, 144 [2009], lv denied 12 NY3d 703 [2009]).”

Reverse Pan Chiropractic

So many people complain that the Pan Chiro line of cases represent a one-way street on the issue of medical necessity .  I remembered a case from 6 years ago that represented the same paradigm, “except the shoe being on the other foot”.

I would suggest a review of the below case including now retired Justice Golia’s concurrence below.

For those that do not know, Justice Golia has been replaced by Justice Martin M. Solomon.  And for what it is worth, Justice Solomon to the best of my knowledge will be the first judge to serve on any Appellate Court who presided in a Civil Court after the beginning of the no-fault litigation tidal wave that began in 2001-2002.

Ocean Diagnostic Imaging P.C. v. Allstate Ins. Co., 10 Misc.3d 145(A)(App. Term 2d Dept. 2006)

From the Appellate Term 6 years ago

“In support of its motion for summary judgment to recover its $2,670.40 claim for MRIs provided to its assignor, plaintiff submitted defendant’s timely denial of claim form which included an unsworn peer review report dated March 2003, asserting the lack of medical necessity for the MRIs based upon a review of a doctor’s report dated March 19, 2003. However, also in support of its motion, plaintiff submitted another report from the same doctor, dated February 26, 2003, which asserted in sufficient detail the medical necessity for the MRIs. Since plaintiff’s moving papers asserted, in admissible form, the medical necessity of the MRIs, and defendant’s opposition papers failed to address plaintiff’s proof as set forth in the sworn February doctor’s report, defendant failed to raise any triable issue with respect to the lack of medical necessity. Consequently, plaintiff is entitled to summary judgment on its $2,670.40 claim.”

Golia, concur:

“In the case at bar, the plaintiff presented a medical report in its motion for summary judgment by a Dr. Raufov dated February 26, 2003. That document effectively rebutted the findings of the defendant’s peer review doctor who did not consider the February 26, 2003 report when making his findings that resulted in a denial of benefits form being served on the claimant.

Inasmuch as the defendant failed to address this issue in its opposing papers, the majority was correct in holding that plaintiff’s prima facie showing of medical necessity went unrebutted and therefore was deemed proven.”

Peer review

Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co., 2012 NY Slip Op 51071(U)(App. Term 2d Dept. 2012)

“As the affirmed peer review report submitted by defendant failed to clearly establish a sufficient medical rationale and factual basis to demonstrate a lack of medical necessity for the services at issue defendant’s motion was properly denied.”

Peer hearsay and electronic signatures

Alfa Med. Supplies v GEICO Gen. Ins. Co., 2012 NY Slip Op 50934(U)(App. Term 2d Dept. 2012)

Contrary to plaintiff’s argument on appeal, defendant was not required to annex to its motion papers copies of the medical records which had been reviewed by defendant’s peer [*2]reviewer (see Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52222[U] [App Term, 9th & 10th Jud Dists 2010]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Furthermore, while plaintiff argues that the peer review report contained an electronic stamped facsimile of the peer reviewer’s signature and, as a result, the report was inadmissible, the record indicates that the facsimile signature was permissibly placed on the report by the chiropractor who had performed the peer review (see Quality Health Prods. v Geico Gen. Ins. Co., 34 Misc 3d 129[A], 2011 NY Slip Op 52299[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Eden Med., P.C. v Eveready Ins. Co., 26 Misc 3d 140[A], 2010 NY Slip Op 50265[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Nothing new to report.

Stipulated to victory

All Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co., 2012 NY Slip Op 50137(U)(App. Term 2d Dept. 2012)

Point I: “The case was tried on December 8, 2010. At trial, plaintiff and defendant stipulated in writing to plaintiff’s prima facie case, defendant’s timely denials, admission of the expert witness disclosure package, which included the peer review report and medical records reviewed, and that the only issues for trial were lack of medical necessity and fees not in accordance with fee schedules.”

Point II: “Plaintiff rested, relying on the stipulation that it had established its prima facie case. Defendant’s witness was unavailable, and defendant moved to adjourn the trial to a later date to call a witness. Since defendant failed to show good cause, the application to adjourn was denied (NY City Civ Ct Act § 1302 [a]). Plaintiff then moved for a directed verdict on the ground that defendant was not ready to proceed and could not establish its defenses (CPLR 4401). Relying on the stipulation, defendant opposed plaintiff’s motion and cross-moved for a judgment in its favor on the ground that it established timely and proper denials, and that the peer review report and medical records were in evidence.”

(At this point court cites to the Nir test of medical necessity)

“The court acknowledges there are circumstances where a live witness would be required to embellish defendant’s position. Here, the court finds defendant was not required to present an expert witness to testify at trial, particularly since plaintiff did not offer a witness or any evidence whatsoever on rebuttal. Accordingly, the court finds defendant successfully proved lack of medical necessity for four of the tests administered and the related explanation and interpretation of results.”

A true trial on papers….  Remember when the Court in S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 2008 NY Slip Op 51537(U)(App. Term 2d Dept. 2008) granted judgment in favor of Defendant based upon a deposition of Defendant’s expert?  Interesting nuance.

Another few fact patterns that have played out numerous times

I am waiting for Mitch Lustig’s comment about how these courts refuse to learn their lesson…

Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 2012 NY Slip Op 50149(U)(App. Term 2d Dept. 2012)

Contrary to the determination of the Civil Court, defendant was not required to annex to its motion papers copies of the medical records which were reviewed by defendant’s peer reviewer (see Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52222[U] [App Term, 9th & 10th Jud Dists 2010]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant established its prima facie entitlement to summary judgment (see 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 Dists 2009]; 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]; [*2]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]).

…”plaintiff “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).”

New Life Med., P.C. v Geico Ins. Co.,2012 NY Slip Op 50150(U)(App. Term 2d Dept. 2012)(run of the mill medical necessity case)

Total Equip., LLC v Praetorian Ins. Co., 2012 NY Slip Op 50155(U)(App. Term 2d Dept. 2012)(District Nassau County reversed)

Elmont Open MRI & Diagnostic Radiology, P.C. v Tri-State Ins. Co., 2012 NY Slip Op 50170(U)(App. Term 2d Dept. 2012)(District Nassau County reversed).


Medical necessity motion wins in a tough venue

Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co., 2012 NY Slip Op 50102(U)(App. Term 1st Dept. 2012)

What happened to Pomona v. Geico?  Why did A-minus go sour?

“[Defendant] submitt[ed] competent medical evidence, including a sworn peer review report, that the diagnostic testing giving rise to plaintiff’s claims lacked medical necessity (see CPT Med. Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 18 Misc 3d 87, 88 [2007]). Plaintiff’s opposition consisting of an attorney’s affirmation — unaccompanied by any medical evidence or other competent proof — was insufficient to raise a triable issue.”