Praetorian again

Darlington Med. Diagnostics, P.C. v Praetorian Ins. Co., 2012 NY Slip Op 50226(U)(App. Term 1st Dept. 2012)

Extension of Pan Medical

I always said Praetorian mean business.  I truthfully have never seen a company that had its ducks in a row like these guys.  This case goes to show one thing.  If you have good paper and solid procedures in place, the plaintiffs should really have something to fear.

“[1] The medical affidavit submitted by plaintiff contained no indication that the generic conclusions reached by the affiant — a physician whose field of practice is unspecified — were based upon either a medical examination of plaintiff or a review of plaintiff’s medical records. [2] Further, plaintiff’s affiant did not refer to, let alone rebut, the contrary findings made by defendant’s peer reviewer”

I recall the Second Department saying that it just did not matter what specialty the doctor was.  It is nice to see Pan Medical (which cited to CPT Medical) get the expansion and context it deserves.  This and ENKO have started to define, albeit piecemeal, the parameters of CPT and Pan.

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).


Improper use of an affirmation cost Plaintiff its case

Radiology Today, P.C. v Mercury Ins. Co., 2012 NY Slip Op 50148(U)(App. Term 2d Dept. 2012)

“In opposition to the motion, plaintiff submitted a doctor’s affirmation and the claim forms, which identified the doctor as plaintiff’s owner. In its reply papers, defendant objected to the affirmation on the ground that it failed to comply with CPLR 2106. Plaintiff’s submission of the doctor’s affirmation was improper because the doctor is a principal of plaintiff professional corporation, which is a party to the action (see CPLR 2106; Slavenburg Corp. v Opus Apparel, 53 NY2d 799 [1981]; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; High Quality Med., P.C. v Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Thus, plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Even if the affirmation of plaintiff’s doctor could properly be considered, plaintiff nevertheless failed to raise an issue of fact, as the doctor’s affirmation did not meaningfully refer to, let alone rebut, the conclusions set forth in defendant’s peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App [*2]Term, 2d, 11th & 13th Jud Dists 2009]).”

I am pretty sure this was my appeal.

A question of fact through an affidavit of a doctor

Neomy Med., P.C. v Geico Ins. Co., 2012 NY Slip Op 50145(U)(App. Term 2d Dept. 2012)

“In opposition to defendant’s cross motion, plaintiff submitted an affidavit of its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]”

I seem to recall losing Quality the opposing evidence was a boiler plate “letter of medical necessity.”

I wish I had the record and the briefs on this one

Pomona Med. Diagnostics, P.C. v GEICO Ins. Co., 2011 NY Slip Op 50276(U)(App. Term 1st Dept. 2011)

“[t]he report of defendant’s peer review doctor, which relied on the assignor’s medical records , raised a triable issue of fact as to whether the services provided by plaintiff were medically necessary . Contrary to defendant’s contention, however, its submissions did not conclusively establish as a matter of law its defense of lack of medical necessity, and its cross motion was properly denied”.

I would love to find out what happened on this one. How did this differ from Enko v. Claredon?  Could someone send me the briefs and the record…

Thanks.

Geico now joins the Mercury and NYCM club in having their medical necesity motions denied based upon boilerplate letters of medical necessity

Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co., 2011 NY Slip Op 50188(U)(App. Term 2d Dept. 2011)

“[p]laintiff submitted an affirmation of its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope [*2]Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009])”

Knowing this provider and the citation to Quality Psychological (letter of medical necessity sufficient to defeat LOMN motion), it appears that Plaintiff proffered the Dr. Leonid Shapiro letter of medical necessity.  Please note that I have not reviewed the record and do not have personal knowledge of these facts.  If my facts are wrong, please let me know and I will make the appropriate changes in the post.  History and practices in no-fault practice do not change themselves unless forced upon the dueling parties.

It was a good run at the cards

Elmont Open Mri & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 52222(U)(App. Term 2d Dept. 2010)

I guess the luck of certain Nassau plaintiff firms (9th and 10th judicial districts) who received favorable decisions on medical necessity motions, while their counterparts in the other Second Department lower courts (2nd, 11th & 13th judicial districts) did not fare as well, were handed a glaring set back in the latest round of decisions.

To put it bluntly, the Appellate Term has held that these firms’ papers and arguments in attempting to defeat a marginally supported lack of medical necessity motion will always lose.  While the Nassau judges, in several well though-out published decisions found otherwise, the Appellate Term for the 9th and 10th Judicial Districts has now conformed their holdings on this issue to that of their New York City counterparts.

While I have reservations about the Appellate Term’s holding that the failure to annex documents that a peer review doctor relied upon is proper, what is interesting is that this court adopted the Urban Radiology holding verbatim.  As it related to the “non-hearsay rule” of plaintiff’s documents, this decision was correct in light of the Fourth Departments holding in Matter of State of New York v Wilkes, 2010 NY Slip Op 07006 (4th Dept 2010).  As those who read this blog regularly will know, I discussed the Wilkes case and predicted that it would solidify the non-hearsay rule enunciated in the Urban court and now followed by the Elmont court.  I have always said to watch the Fourth Department when they dump about 100 cases online once each month.

Here is my favorite line from this Court: “defendant was not required to consider plaintiff’s bills in a vacuum and to ignore medical records which defendant had received either from plaintiff’s assignor or from another provider who had submitted such records on behalf of the assignor”

And now the Ninth and Tenth follow lockstep with the Second, Eleventh and Thirteenth

Elmont Open MRI & Diagnostic Radiology, P.C. v Clarendon Natl. Ins. Co., 2010 NY Slip Op 52061(U)(App. Term 2d Dept. 2010)

Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 52062(U)(App. Term 2d Dept. 2010)

I know the above heading looks like some secret code that is necessary to enter a gambling hall.  But it is important to understand that a plaintiff will almost always succumb to a defendant’s medical necessity motion, at both divisions of the Appellate Term, Second Department, when that plaintiff fails to answer a medical necessity motion with a proper affidavit of merit.

As such, I would look at each unrebutted motion for summary judgment based upon the lack of medical necessity of a particular service that you might have lost in District Nassau and file a Notice of Appeal.  As long as your mailing is in place, I suspect the respective orders of the District Court will be reversed.

More plaintiffs fail to rebut an insurance carrier’s medical utilization report

Richmond Pain Mgt., P.C. v Clarendon Natl. Ins. Co., 2010 NY Slip Op 52015(U)(App. Term 2d Dept. 2010)

(my case) Radiology Today, P.C. v Mercury Ins. Co., 2010 NY Slip Op 52020(U)(App. Term 2d Dept. 2010).  Dr. Shapiro’s affidavit was found not to sufficiently rebut the peer report.  The Shapiro affidavit was somewhat detailed.

(my case) Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 2010 NY Slip Op 52022(U)(App. Term 2d Dept. 2010).  This case also involves the failure to obtain a proper affidavit from a chiropractor; but the defect was overlooked due to the failure of the plaintiff to object to the same.

More Pan Chiropractic sightings – or perhaps I should say citings

The November 10, 2010 decisions from the Appellate Term disclose two (2) Pan Chiropractic v. Mercury citings.

High Quality Med., P.C. v Mercury Ins. Co., 2010 NY Slip Op 51900(U)(App. Term 2d Dept. 2010)

MIA Acupuncture, P.C. v Geico Ins. Co., 2010 NY Slip Op 51899(U)(App. Term 2d Dept. 2010)