MSSA Corp. v Redland Ins. Co., 2011 NY Slip Op 51606(U)(App. Term 2d Dept. 2011).
A case more remarkable for Justice Steinhardt’s dissent:
“In the instant matter, the peer review report of Dr. Ross did not “shed any light” on the assignor’s condition, nor did it state, in any sufficiently detailed manner, the reason the medical equipment at issue was not needed. The reader of the report is at a total loss to determine what actually happened to the assignor and what parts of her anatomy are amiss and in what way. “Bilateral shoulder and left elbow” injuries may range from a complicated fracture to a minor contusion. Without more, the report is conclusory and vague, and insufficient to shift the burden to plaintiff. I therefore vote to affirm the order denying defendant’s motion for summary judgment.”
The question here involves what needs to be in a peer review to demonstrate prima facie a lack of medical necessity for rendered services. It is interesting that certain judges are reading these peer reports in a more than perfunctory manner.
11 Responses
“interesting” J.T. don’t urinate on my back and tell me its raining. Some judges are not reading them at all because they have an industry agenda. The pendulum (sp?)has reached its highest apex and seems to just hover.
Somewhere in there the insurance companies poured more money into the state then the trial lawyers.
When I interviewed for a job with MetLife — disability; long term care and dental became my territory — I told the head of their general counsel — the general counsel a very powerful man — that if the insurance industry combined money they could crush the trial lawyers.
11 years later I am demonstrated as correct. Hell I probably started it.
What did I do?
Of course, we know that this Term has been relaxing the summary judgment burdens in favor of one particular class of litigants for serveral years now. Apparently, there is now some dissent in the ranks, literally.
One insane example in many, which actually illustrates this Term denying due process to the insured and its assignor, is found here (combined with some of my discussion taken from a Brief directed to a different appellate court):
In Acupuncture Works, the Appellate Term inappropriately granted the insurer summary judgment premised upon speculation that the insurer might have failed to issue a follow-up demand for verification. Acupuncture Works, P.C. v. MVAIC, 2010 NY Slip Op 50646U, 1-2 (N.Y. App. Term 2010). Indeed, as the Term provided therein, “While a review of the record reveals that defendant may have initially tolled its time to pay or deny the claim by the issuance of a request for verification on June 10, 2002 … the record does not contain any indication that defendant timely issued a follow-up verification request (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]).” Id, emphasis added.
The Appellate Term’s grant of summary judgment premised upon speculation that Appellant might not have followed-up on its own verification demand– even while no proof one way or the other was obviously provided– was highly erroneous and disregarded, in extreme fashion, the summary judgment standards continually reiterated by the Court of Appeals and Appellate Divisions.
And this does not even address the aspect that the Term allowed this insurer to receive a windfall at the expense of the insured simply in light of counsel for the insurer’s necessary suggestion that the insurer fails to comply with the follow-up regulations in systematic and continual fashion.
There was a time when breaking the law went against you, rather than for you.
Does anyone from the insurance bar or Appellate Term 2nd want to defend Acupuncture Works? If so, JT can start a unique thread for that, and I will debate the point for the side of due process.
…the silence will be deafening.
LOl, sorry JT, perhaps I got a little out of hand, that was NOT directed at you, of course.
Now I direct it at him. JT Sun’s treatise is now directed at you. Just what do you have to say for yourself young man. You should be roundly caned.
In unrelated news I heard Rogak gave a Lecture Series on New York No Fault Law a few days back in the Bahamas. Now we’ve got all this hot air and wind threatening to wreck our beach weekend.
I am busy editing Mercury v. Encare right now – I am trying to get this thing on for the November term so the defense bar can have a happy New Year. I will respond to Sun’s treatise later.
Now, as to Rogak’s summer no-fault series, well I will not comment. I will say though that if he keeps saying that the DOI’s proclamation that a carrier must issue a global denial should be ignored, then I might try to enlist Chris Malone from the DOI to clarify this issue again.
There are some really bad peer reviews. For the 2d Dept, I can only imagine how bad it would have to be to split the judges.
Unless I’m mistaken, a dissent means the ability to appeal as of right to App Div.
You are mistaken. But, I wouldn’t be surprised if the App Div. 2nd Dept finally takes up this issue should a proper application be made.
I thought a dissent gave you an automatic shot at the App Div too.
What is “proper application” mean. C’mon now JT. Only you know what a “proper application” is? I get it. That’s right I am hip.
Everyone hire J.T. because only knows what’s proper.
Using facts and precedent to demonstrate the decision was wrong and highlighting the importance of review is not enough. It has to be JT proper.
If the peer review is as bad as the dissent intimates it is, and leave is granted, then I hope Redland pays this out. This is not the kind of precedent that is needed right now.
J.T. you have to read some of these Peers. They are worse then the letters of medical necessity.
I had one Peer state (DME) that it was just to much so don’t pay on anything.
On cross the doctor stated that he made absolutely no item by item inquiry as to whether the particular item was medically necessary. He based his entire opinion on “its just too much.”
Because I am Zuppa and can win everywhere except in anything related to No Fault — where I can’t win a thing — the judge in his infinite wisdom ruled the items were not medically necessary.
I laughed and said what does it take to win.
The Judge said if they have a witness they are going to win unless you really destroy him on cross.
I asked the Judge if he was expecting a Perry Mason like breakdown on the stand or if he wanted me to go further and actually ring the miscreant’s neck.
To his credit he was amused but kicked me out anyway.