Total Equip., LLC v Praetorian Ins. Co., 2012 NY Slip Op 50078(U)(App. Term 2d Dept. 2012 [9th and 10th Jud. Dis])
The 9th and 10th again tell Nassau District Court that they are not exempt from the rule that an unopposed lack of medical necessity motion spells doom.
Elmont Open MRI & Diagnostic Radiology, P.C. v Tri State Consumer Ins. Co., 2012 NY Slip Op 50079(U)(App. Term 2d Dept. 2012 [9th and 10th Jud. Dis])
I like this line:
“Since plaintiff, in opposition to defendant’s motion, failed to submit any medical evidence sufficient to raise a triable issue of fact as to medical necessity, defendant was entitled to summary judgment”
7 Responses
How many times does the 2nd Dept have to tell the lower court judges the same thing
in adfinitum
Because the 2nd department also said the peer review had to have a FACTUAL basis and medical rationale and those crazy Nassau County judges were actually reading the peer reviews (and the documents that they were supposedly based on) and seeing that they, in fact, didn’t!
The fix is in. A peer review that in no way “meaningfully refers to, let alone rebuts” the findings of the treating doctors is fine to rebut the presumptuion of medical necessity in the 2nd Dept., but if a plaintiff wants to keep its case alive, it needs provide a medical affidavit that specifically refers to all the defects in the peer review. And I’m not talking medical defects, I’m talking factual ones.
Look, I can write a rebuttal affidavit. And if you can afford Dr. Leonid Shapiro, he will sign it. It is not difficult. It is pure laziness on the providers’ part.
Joe, the bottom line is that you need an Affidavit from the doctor. The judges in District Court, Nassau County are not doctors and should not be reading the peer review reports. They must follow the case law, even if they do not like it.
I’ll use an extreme – although not as uncommon as it should be – example:
Peer review report of cervical MRI says “the patient had no symptoms of radiculopathy, no radiating pain/tingling/numbness/parasthesia, etc., in the upper extremities, and no 4/6/8/12 weeks (whatever the questionable “authority” the peer reviewer cites to allegedly says) of conservative treatment, therefore the MRI should be denied”
Among the records the peer doctor allegedly reviewed there’s a follow up report of the prescribing chiropractor that says “after 6 weeks of treatment, patient still has symptoms of radiculopathy, radiating pain/tingling/numbness/parasthesia, etc., in the upper extremities, therefore I am ordering this MRI”
I need someone with a medical degree to tell you the peer has no factual basis?
What about a situation where the provider’s attorney finds the the authority quoted in the peer review and finds that the quoted portion is misquoted, out of context or isn’t even in there at all? Do I need an affidavit for that?
It’s this very nonsense that burnt me out on no-fault and makes me glad, every day, that I’m not practicing it anymore.
Oh and Mitch, I was never clear if they’re correct or not, but I’ve heard more than one judge in that courthouse say, on the record at least once, that they’re not bound by the Term, the Term is free to reverse them, but they’re going to decide how they decide until the Division tells them differently (and this wasn’t always in reference to just no-fault either).
PS I hope none of that came off as hostile, it was intended as anything but. I’m in a happy place now! (I may be glad to be done with practicing no-fault, but I still enjoy the discourse).