Pan Chiro sightings

I suspect if there is one case that I won that I never thought would be consistently cited, Pan Chiro would be it.  Pan Chiro involved $300 in CPT testing and a shoddy affidavit of merit from the plaintiff.  Yet, it continues to live on.

My case: 1. Mutual Care Med. Supply, Inc. v Mercury Cas. Co., 2010 NY Slip Op 51734(U)(App. Term 2d Dept. 2010)(“Defendant also submitted, among other things, sworn peer review reports, as well as an affidavit executed by the chiropractor who had performed the peer reviews, which set forth a factual basis [*2]and medical rationale for the conclusions that there was a lack of medical necessity for the medical supplies at issue. As plaintiff failed to proffer an affidavit from a health care practitioner which meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review 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]), defendant’s motion for summary judgment is granted”)

My case: 2. I.V. Med. Supply, Inc. v Mercury Ins. Group, 2010 NY Slip Op 51736(U)(App. Term 2d Dept. 2010)(“Defendant also submitted, among other things, a sworn peer review report, as well as an affidavit executed by the chiropractor who had performed the peer review, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the medical supplies at issue. As plaintiff failed to proffer an affidavit from a health care practitioner which [*2]meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review 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]), defendant’s motion for summary judgment is granted.”).

3. St. Vincent Med. Care, P.C. v Clarendon Natl. Ins. Co., 2010 NY Slip Op 51728(U)(App. Term 2d Dept. 2010)(“As the affirmation of plaintiff’s doctor submitted in opposition to the cross motion did not meaningfully refer to, let alone rebut, the [*2]conclusions set forth in the peer review report, the branch of defendant’s cross motion seeking summary judgment as to this cause of action should have been granted (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]”)

I.V. Med. Supply, Inc. v Mercury Ins. Group

Analysis or reference to scientific data is necessary to defeat a motion based upon the lack of causal connection between lead paint and attendant poisoning

Okay, I am back to my posts regarding what should be necessary to defeat a medical necessity summary judgment motion.  This is from a lead paint case.

Smith v New York City Hous. Auth., 2010 NY Slip Op 05484 (1st Dept. 2010)

“Plaintiffs’ submission of the affidavit of an expert in the field of environmental geochemistry, was insufficient to raise a triable issue of fact as to causation. The expert’s opinion that airborne lead dust caused the infant’s high blood lead level 14 months after the first period of residency was speculative and “devoid of analysis or reference to scientific data” (Abalola v Flower Hosp., 44 AD3d 522, 522 [2007]).

The failure to explain decreased range of motion after a somwhat normal examination with plaintiff's own doctor is fatal to plaintiff's 5102(d) action

“Dr. Thompson also failed to reconcile his findings of limitation in the plaintiff’s left shoulder in May 2009, as set forth in his affirmation, with the report of the injured plaintiff’s other treating physician, Dr. Gary Fink, who found no limitations in the injured plaintiff’s left shoulder less than one month post-accident (see Raleigh v Ram, 60 AD3d 747).”

Again, how come the Appellate Term is not applying this body of law to no-fault?  If an IME shows normal range of motion and plaintiff’s own medical evidence shows normal range of motion prior to the IME, then the plaintiff  who attempts to show deficiencies in assignor’s range of motion post IME shoud be unable to raise an issue of fact.  Simple.

The failure to explain decreased range of motion after a somwhat normal examination with plaintiff’s own doctor is fatal to plaintiff’s 5102(d) action

“Dr. Thompson also failed to reconcile his findings of limitation in the plaintiff’s left shoulder in May 2009, as set forth in his affirmation, with the report of the injured plaintiff’s other treating physician, Dr. Gary Fink, who found no limitations in the injured plaintiff’s left shoulder less than one month post-accident (see Raleigh v Ram, 60 AD3d 747).”

Again, how come the Appellate Term is not applying this body of law to no-fault?  If an IME shows normal range of motion and plaintiff’s own medical evidence shows normal range of motion prior to the IME, then the plaintiff  who attempts to show deficiencies in assignor’s range of motion post IME shoud be unable to raise an issue of fact.  Simple.

A $4,300 affidavit- and another Pan Chiro citing (or sighting)

Innovative Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 50884(U)(App. Term 2d Dept. 2010)

“Appeal from an order…granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $4,250.90.”

“[j]udgment is reversed without costs, the order entered March 18, 2009 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted”

“The affidavit submitted by plaintiff in opposition to defendant’s motion was insufficient to raise a triable issue of fact, as it merely consisted of a conclusory statement by the affiant, the doctor who had provided the treatments, that he reaffirmed his opinion that the disputed services were medically necessary. The affiant did not refer to, or discuss, the determination of defendant’s chiropractors. Consequently, plaintiff failed to demonstrate the existence of an issue of fact with respect to medical necessity (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]), and defendant’s motion for summary judgment should have been granted.”

A letter of medical necessity raises a triable issue of fact?

Quality Psychological Servs., P.C. v Mercury Ins. Group, 2010 NY Slip Op 50601(U)(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 (see A.B. Med. Servs., PLLC, 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U]). In view of the existence of a triable issue of fact, defendant’s motion for summary judgment was properly denied and plaintiff’s cross motion should have been denied. The order is modified accordingly.”

The letter of medical necessity in this case was one of the documents that the peer reviewer, Dr. Rosenfeld, examined in coming to his conclusion that the services lacked medical necessity.  I thought the test to determine the lack of medical reasonableness of a service involved a meaningful disagreement with the peer review.  How could this have been done if the affiant plaintiff doctor failed to address the peer doctor’s disagreement with the letter of medical necessity that formed the basis of the peer doctor’s report?  Thus, even under the liberal standard to defeat a medical necessity summary judgment motion that we saw develop in Infinity v. Mercury and Coop City Chiro v. Mercury, Mercury’s summary judgment motion in this case should have been granted.

Mark my words: we are inching towards the day when an appellate court will finally be forced to define, in some substance, the term “medical necessity” or “medically necessary”.

A poorly drafted affidavit of merit fails to defeat my summary judgment motion

Another Plaintiff failed to raise a triable issue of fact against a medical necessity summary judgment motion.  This affidavit, if memory served me correct, was quite verbose.  It was close to the minimal threshold needed to raise an issue of fact (See, Infinity v. Mercury and Coop City Chiro v. Mercury), but did not cut the mustard as they say.  Oh by the way – I was the Respondent here, not the Appellant as is usually the case.

Prime Psychological Servs., P.C. v Mercury Ins. Group, 2010 NY Slip Op 50585(U)(App. Term 2d Dept. 2010)

“In opposition to the motion, plaintiff failed to raise a triable issue of fact, as the psychologist’s affirmation submitted by plaintiff did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (id.; see also 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]). Accordingly, defendant’s motion for summary judgment dismissing the complaint was properly granted”

A really poorly drafted answering affidavit will not defeat an insurance carrier's medical necessity based summary judgment motion

My medical necessity summary judgment crusade continues.

Gz Med. & Diagnostic, P.C. v Mercury Ins. Co., 2010 NY Slip Op 50491(U)(App. Term 2d Dept. 2010)

We have seen this before:  “In opposition to the motion, plaintiff failed to raise a triable issue of fact. Contrary to the finding of the Civil Court, the affirmation of plaintiff’s doctor did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (id.; see also 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]).”

Besides this case and those like it, I would say that the plaintiffs are getting better at defeating these types of motions.  This only makes sense.  I mean, in a similar vain, would it make sense after 3-4 years of losing cases based upon the “mailing” issue, for carriers not to figure out how to craft procedures and draft affidavits that would raise the inference that an item was mailed?

As I have also said before, however, the Appellate Term recently gave two free passes, on medical necessity summary judgment motion, to firms that should be eternally grateful that the contents of their papers were not exposed.

A really poorly drafted answering affidavit will not defeat an insurance carrier’s medical necessity based summary judgment motion

My medical necessity summary judgment crusade continues.

Gz Med. & Diagnostic, P.C. v Mercury Ins. Co., 2010 NY Slip Op 50491(U)(App. Term 2d Dept. 2010)

We have seen this before:  “In opposition to the motion, plaintiff failed to raise a triable issue of fact. Contrary to the finding of the Civil Court, the affirmation of plaintiff’s doctor did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (id.; see also 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]).”

Besides this case and those like it, I would say that the plaintiffs are getting better at defeating these types of motions.  This only makes sense.  I mean, in a similar vain, would it make sense after 3-4 years of losing cases based upon the “mailing” issue, for carriers not to figure out how to craft procedures and draft affidavits that would raise the inference that an item was mailed?

As I have also said before, however, the Appellate Term recently gave two free passes, on medical necessity summary judgment motion, to firms that should be eternally grateful that the contents of their papers were not exposed.

An affidavit that was not up to par

This is a case that came out, upon which I prevailed.  I want you to compare the plaintiff’s affidavit in this case with that found in Infinity and Coop City – see here.

High Quality Med., P.C. v Mercury Ins. Co., 2010 NY Slip Op 50447(U)(App. Term 2d Dept. 2010)

“In opposition to defendant’s cross motion, plaintiff failed to raise a triable issue of fact. Contrary to the finding of the Civil Court, the affirmation of plaintiff’s doctor did not meaningfully refer to, let alone rebut, the conclusions set forth in the 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]; see also 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]). Accordingly, the branch of defendant’s cross motion which sought summary judgment dismissing the second cause of action should have been granted (id.; see also 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]).”

Here was the pertinent part of plaintiff’s unsatisfactory affidavit, which I am pulling from my Appellate brief:

  1. “1. The Affirmation of Dr. REDACTED

Respondent offered an affirmation from a physician named REDACTED.  The affirmation states the following:

I have reread the medical records attached hereto that I have prepared in conjunction with the treatment rendered to Robel Thomy for his accident, suffered on November 26, 2006.  I swear that my conclusions and findings, fully incorporated by reference, are true and accurate.  I have also read the report from the peer review performed by REDACTED on March 30, 2007.  Further, after review of the above documents, I reaffirm my opinion that the medical services that were provided on March 7 were medically necessary”

In my opinion, this affidavit was better than that found in Infinity and Coop City.  It was internally consistent and really said the same thing, less the verbiage, as that found in Infinity and Coop City.