Huntington Med. Plaza, P.C. v Travelers Indem. Co., 2011 NY Slip Op 21471 (App. Term 2d Dept. 2011)
Facts:
Case #1: IME performed and all post IME services denied on the basis that they lack medical necessity. After trial, Defendant wins.
Case #2: Services performed after those performed in Case #1. Same IME.
Defendant in Case #2 moves in essence for summary judgment on the basis that the services lack medical necessity because of the finding after trial in Case #1. Civil Court denies the motion, and says the following:
“There is no case law of which this court is aware that makes an IME’s finding conclusive as to all post-IME treatment, that is, on the basis of a previous finding that there is no medical necessity for any other post-IME treatments not previously litigated. Obviously, insurers would be content with such a ruling (and there does exist a certain logic to it on public policy grounds) but, barring action by the state legislature, the Insurance Department or a higher court, it is left for the trial court to decide on a case by case basis.”
I think the court is wrong. Barnett v. Ives, 265 A.D.2d 865 (4th Dept. 1999). See, Martin v Geico Direct Ins., 31 A.D.3d 505 (2d Dept. 2006). C.f.???
One Response
The court is correct. The issues are substantially similar but not identical. In Martin, it appears that the plaintiff conceded that the issues were identical.