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[A], 2009 NY Slip Op 51219[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). 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[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]
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 affidavits of a merit is a risk that is not worth taking. But that is my take and Mercury’s take on these issues.
