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Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co., 2012 NY Slip Op 51071(U)(App. Term 2d Dept. 2012)
“As the affirmed peer review report submitted by defendant failed to clearly establish a sufficient medical rationale and factual basis to demonstrate a lack of medical necessity for the services at issue defendant’s motion was properly denied.”
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3 Responses
Question. Why is the Court getting involved in reviewing the merits of the peer review.? By submitting the peer review, the insurer shifted the burden to the plaintiff.
If the plaintiff does not submit an affidavit from the provider supporting the medical necessity of the services, the insurer should prevail.
This case seems contrary to Khodadi Radiology and its progeny. In the context of a motion for summary judgment, the Court is not the ultimate trier of fact.
Mitchell, so if the peer review report literally says “Mary had a little lamb,” and nothing else, that shifts the burden to the provider? And without a rebuttal affidavit, the insurer wins summary judgment?
Obviously the answer to both questions is “no.” The peer review report must establish, prima facie, that the services aren’t medically necessary.
This is not, and should not be, a mechanical “if you have a peer review report, you automatically sustain your burden” inquiry. Consider, for example, the question of a defendant’s prima facie burden on the “serious injury” issue in bodily injury suits. The courts there have to review the merits of the experts’ reports/affidavits to determine whether a prima facie burden is met. And, of course, sometimes the burden isn’t met. See, e.g., this recent App. Div., 2d Dep’t decision going into the meat of the defendant’s report and determining that a prima facie case for a lack of a serious injury was not met: http://www.nycourts.gov/reporter/3dseries/2012/2012_04154.htm
If anything, the Appellate Term should be doing more of this, not less of this.
You are right in an extreme circumstance where the peer review says “Mary had a little lamb.” But in most instances that is not the case. While the peer review may not be great, it usually contains a least an arguable basis that the services were not medically necessary. There are also numerous decisions from the Appellate Term dismissing cases based upon a peer review report where the court does not discuss the merits of the peer. Are we saying that in those cases the insurer’s peer review was unassailable. I still think a plaintiff is taking too big of a risk if it does not provide a medical affidavit and simply relies upon an attorney affirmation attacking the merits of the peer review report.