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.

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 simple medical necessity decision

Innovative MR Imaging, P.C. v Praetorian Ins. Co., 2013 NY Slip Op 50264(U)(App. Term 1st Dept. 2013)

“The unsworn letter report submitted by plaintiff from the assignor’s treating chiropractor was without probative value (see CPLR 2106; Pierson v Edwards, 77 AD3d 642 [2010]), and, even if considered, the conclusory findings set forth therein were insufficient to withstand summary judgment (see CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]).”

It involved a different matter.

All Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 2013 NY Slip Op 50252(U)(App. Term 2d Dept. 2013)

Prior trial testimony was plainly insufficient to rebut the peer review.  Also, a letter of medical necessity was found not to be sufficient to rebut defendant’s prima facie showing.  Compare: Quality Psychological, P.C. v. Mercury.

“On appeal, plaintiff argues, among other things, that it raised a triable issue of fact as to the medical necessity of the psychological testing at issue by submitting a letter of medical necessity and the prior trial testimony of a Dr. Franklin Porter. However, the letter of medical necessity did not meaningfully refer to, let alone rebut, the conclusions of defendant’s [*2]psychologist (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]; see also Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and Dr. Porter’s testimony has no relevance to the peer review report at issue in this case. While Dr. Porter testified generally, in an unrelated trial, that certain psychological tests have utility, the peer review report relied upon by defendant in this case concluded that they were not medically necessary under the factual circumstances presented by this case. Plaintiff’s remaining contentions on appeal are without merit and/or unpreserved for appellate review.

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.”

Conclusory affidavit?

New Life Med., P.C. v GEICO Ins. Co., 2012 NY Slip Op 51061(U)(App. Term 2d Dept. 2012)

It was just insufficient.

“In support of its cross motion, defendant submitted, among other things, two affirmed peer review reports, each of which set forth the factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services at issue. The affidavit by plaintiff’s health care practitioner submitted in response failed to meaningfully rebut the conclusions set forth in the peer review reports (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]).”

Affidavit deemed insufficient under a Pan Chiro analysis

Neomy Med., P.C. v American Tr. Ins. Co., 2012 NY Slip Op 50769(U)(App. Term 2d Dept. 2012)

“Since the affidavit by plaintiff’s supervising physician failed to justify with specificity the additional studies, it did not rebut the conclusions set forth in the peer review report. Thus, plaintiff failed to raise an issue of fact (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]).”

Compare this to:  Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc.3d 129(A)(App. Term 2d Dept. 2010)(“In opposition to defendant’s motion, plaintiff submitted, among other things, a letter of medical necessity sworn to by the psychologist who had examined plaintiff’s assignor, which was sufficient to raise a triable issue of fact as to the medical necessity of the services rendered”

1) Does a treating doctor’s affidavit need to have less in it than a plaintiff peer doctor?

2) Has the quanta of evidence necessary to raise an issue of fact increased in two years since Quality v. Mercury?

I do not have an answer.

Letter of medical necessity sufficient to raise an issue of fact

Complete Radiology, P.C. v GEICO Ins. Co., 2012 NY Slip Op 50419(U)(App. Term 2d Dept. 2012)

“the affirmed letter of medical necessity submitted by plaintiff’s assignor’s treating physician was sufficient to demonstrate that there is a triable issue of fact as to medical necessity”

See the buzz words.