Plaintiff's conclusory affidavit is insufficient to defeat an insurance carrier's lack of medical necessity motion

Medical Necessity Affidavits: Why Conclusory Statements Fail to Defeat Insurance Company Summary Judgment Motions

In the evolving landscape of New York no-fault insurance litigation, the requirements for defeating insurance company summary judgment motions have become increasingly stringent. The Appellate Term’s decision in Innovative Chiropractic, P.C. v Travelers Insurance Company serves as a crucial warning for healthcare providers throughout Long Island and New York City: generic, conclusory affidavits are no longer sufficient to survive motions challenging medical necessity.

This development represents a significant shift in the burden placed on medical providers seeking to recover payment for their services under New York’s no-fault insurance system, affecting practices from Nassau County to Manhattan and everywhere in between.

The Stakes for Healthcare Providers

For medical practices serving the diverse communities across Long Island and the five boroughs, understanding these evolving standards is essential for successful claim recovery. The difference between a well-crafted, detailed affidavit and a generic, conclusory statement can mean the difference between payment and dismissal of legitimate claims.

Healthcare providers throughout Nassau and Suffolk counties, as well as practitioners in Brooklyn, Queens, Manhattan, the Bronx, and Staten Island, must adapt their litigation strategies to meet these heightened requirements or risk seeing valid claims dismissed on summary judgment.

The Travelers Decision: A New Standard Emerges

Now, Travelers has joined in the parade to non-suit plaintiffs who put in pro-forma affidavits of medical necessity in an attempt to defeat an insurance carrier’s well support summary judgment motion:

In Innovative Chiropractic, P.C. v Travelers Ins. Co., 2009 NY Slip Op 52447(U)(App. Term 2d Dept. 2009), the following was observed:

“In support of its cross motion, defendant annexed an affidavit and a peer review report from the chiropractor who performed the peer review, which established a lack of medical necessity with respect to plaintiff’s $425.44 claim. In opposition thereto, plaintiff’s treating [*2]chiropractor submitted an affidavit in which he merely stated that the treatment was medically necessary, without setting forth any facts to support the conclusion. Consequently, plaintiff’s opposition papers failed to raise a triable issue of fact as to medical necessity (see Bronze Acupuncture, P.C. v Mercury Ins. Co., 24 Misc 3d 126, 2009 NY Slip Op 51219 ). Accordingly, defendant’s cross motion for summary judgment dismissing plaintiff’s fifth cause of action should have been granted (see Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134, 2009 NY Slip Op 50234

I end this post with the following thought. If you are litigating medical necessity cases against an insurance carrier who makes these types of motions and gears their papers to the eventual trip to the Appellate Term, then you had better make sure that your answering papers not only have affidavits of merit, but have affidavits that are factually detailed and contain a valid medical rationale. The attorney arguments that many times win in Civil Court or District Court, usually do not fly at the Appellate Term. I think the failure to procure affidavit

Understanding the Appellate Term’s Heightened Standards

The Problem with “Pro-Forma” Affidavits

The Innovative Chiropractic decision highlights a critical issue that has been developing across multiple Appellate Term decisions: the rejection of cookie-cutter, template-based affidavits that provide only conclusory statements about medical necessity.

These “pro-forma” affidavits typically contain generic language such as:

• “The treatment was medically necessary”
• “The services provided were appropriate”
• “The patient required this care”

Without more, such statements fail to create the triable issue of fact necessary to survive summary judgment.

What Insurance Companies Are Doing Right

The Travelers case illustrates the sophisticated approach insurance carriers are taking to challenge medical necessity claims. Their strategy typically includes:

1. Expert Peer Review: Obtaining detailed peer review reports from qualified medical professionals
2. Specific Challenges: Identifying particular aspects of treatment that lack medical support
3. Documentation: Providing comprehensive evidence supporting their position
4. Legal Precision: Crafting motions designed to withstand appellate scrutiny

The Contrast in Approaches

While insurance companies invest heavily in detailed expert opinions and comprehensive documentation, many healthcare providers continue to rely on perfunctory affidavits that simply state conclusions without supporting facts or medical rationale.

This disparity in preparation and presentation often leads to the dismissal of otherwise legitimate claims, not because the treatment was inappropriate, but because the provider failed to adequately articulate why it was necessary.

The Legal Framework: What Courts Require

Burden of Proof Standards

Under New York law, when an insurance company moves for summary judgment claiming lack of medical necessity, they must make a prima facie showing supporting their position. Once they do so, the burden shifts to the healthcare provider to demonstrate that triable issues of fact exist.

Elements of an Effective Medical Necessity Affidavit

To successfully oppose a medical necessity challenge, healthcare providers must submit affidavits that include:

Clinical Findings: Specific examination findings that support the need for treatment
Medical Rationale: Clear explanation of why the particular treatment modality was chosen
Treatment Goals: Articulation of what the treatment was intended to accomplish
Progress Assessment: Documentation of patient response and continued need for care
Professional Standards: Reference to accepted medical standards supporting the approach

Common Deficiencies in Failed Affidavits

The Appellate Term consistently rejects affidavits that:

• Merely recite legal conclusions without factual support
• Use generic language that could apply to any case
• Fail to address specific challenges raised by the insurance company
• Lack detail about the patient’s condition and treatment response
• Omit medical reasoning for continued care

Practical Implications for Long Island and NYC Providers

Immediate Strategic Changes Required

Medical practices throughout Nassau and Suffolk counties, as well as NYC-area providers, must fundamentally change their approach to defending medical necessity challenges:

Investment in Quality: Practices must be prepared to invest more time and resources in preparing detailed, case-specific affidavits
Expert Witnesses: Consider engaging independent medical experts when treating providers cannot adequately articulate the medical rationale
Documentation Review: Ensure medical records contain sufficient detail to support necessity arguments
Legal Coordination: Work closely with experienced counsel who understand Appellate Term requirements

Cost-Benefit Analysis

While preparing detailed affidavits requires greater initial investment, the alternative—having claims dismissed on summary judgment—is far more costly. Practices must view proper affidavit preparation as essential business practice, not optional expense.

Frequently Asked Questions

Q: Can a treating provider’s affidavit ever be sufficient to defeat a medical necessity challenge?

A: Yes, but only if it contains detailed, case-specific information addressing the medical rationale for treatment. Generic, conclusory statements are insufficient regardless of who provides them.

Q: How detailed must an affidavit be to satisfy Appellate Term requirements?

A: The affidavit must be detailed enough to create a triable issue of fact. This typically requires specific clinical findings, medical reasoning, and explanation of treatment decisions that goes well beyond conclusory statements.

Q: What happens if my practice has been using template affidavits?

A: Template affidavits that contain only conclusory language are likely to fail under current standards. Practices should immediately review and update their affidavit practices to ensure compliance with evolving requirements.

Q: Can I use medical literature to support my affidavit?

A: Yes, reference to relevant medical literature, treatment guidelines, and professional standards can strengthen an affidavit by providing additional support for clinical decisions.

Q: How does this affect cases already in litigation?

A: These standards apply to pending cases. If your current cases involve medical necessity challenges, you should immediately review your opposition papers to ensure they meet current requirements.

Take Action to Protect Your Claims

If your medical practice is facing medical necessity challenges from insurance companies, or if you want to ensure your current practices comply with evolving legal requirements, you need experienced guidance from attorneys who understand both the clinical and legal aspects of these disputes.

The Innovative Chiropractic decision and similar cases represent a fundamental shift in how courts evaluate medical necessity disputes. Practices that fail to adapt risk significant financial losses from dismissed claims and may find themselves at a severe disadvantage in all aspects of no-fault litigation.

Don’t let inadequate legal preparation undermine your legitimate claims for payment. The investment in proper legal representation and documentation is far less than the cost of having valid claims dismissed.

Call 516-750-0595 to speak with an experienced no-fault insurance attorney who understands the evolving requirements for medical necessity defense and can help ensure your practice is properly protected in this changing legal landscape.

This analysis is provided for educational purposes only and does not constitute legal advice. The outcome of any legal matter depends on its specific facts and applicable law. Consult with qualified legal counsel for advice regarding your particular situation.

Related Articles

• Why conclusory affidavits fail to build strong opposition to medical necessity summary judgment motions
• How poorly drafted medical affidavits fail against insurance medical necessity motions
• Understanding the convergence of medical malpractice and no-fault litigation principles
• Effective strategies for peer review rebuttals in New York no-fault insurance cases
• New York No-Fault Insurance Law

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Legal Update (February 2026): Since this 2009 decision, New York courts have continued to refine the standards for medical necessity affidavits in no-fault litigation, with potential changes to specificity requirements and evidentiary standards. Additionally, regulatory amendments to New York’s Insurance Law and updates to no-fault fee schedules may have affected the procedural framework for challenging medical necessity determinations. Practitioners should verify current case law developments and regulatory provisions when preparing medical necessity opposition papers.