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, 2007 NY Slip Op 50680). 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”.

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Legal Update (February 2026): Since this 2010 decision, New York’s no-fault medical necessity standards and peer review procedures may have been modified through regulatory amendments, updated fee schedules, or changes to Insurance Department guidelines governing the sufficiency of medical opposition to peer review determinations. Practitioners should verify current provisions regarding what constitutes adequate medical evidence to defeat summary judgment motions in medical necessity disputes.