So many people complain that the Pan Chiro line of cases represent a one-way street on the issue of medical necessity . I remembered a case from 6 years ago that represented the same paradigm, “except the shoe being on the other foot”.
I would suggest a review of the below case including now retired Justice Golia’s concurrence below.
For those that do not know, Justice Golia has been replaced by Justice Martin M. Solomon. And for what it is worth, Justice Solomon to the best of my knowledge will be the first judge to serve on any Appellate Court who presided in a Civil Court after the beginning of the no-fault litigation tidal wave that began in 2001-2002.
Ocean Diagnostic Imaging P.C. v. Allstate Ins. Co., 10 Misc.3d 145(A)(App. Term 2d Dept. 2006)
From the Appellate Term 6 years ago
“In support of its motion for summary judgment to recover its $2,670.40 claim for MRIs provided to its assignor, plaintiff submitted defendant’s timely denial of claim form which included an unsworn peer review report dated March 2003, asserting the lack of medical necessity for the MRIs based upon a review of a doctor’s report dated March 19, 2003. However, also in support of its motion, plaintiff submitted another report from the same doctor, dated February 26, 2003, which asserted in sufficient detail the medical necessity for the MRIs. Since plaintiff’s moving papers asserted, in admissible form, the medical necessity of the MRIs, and defendant’s opposition papers failed to address plaintiff’s proof as set forth in the sworn February doctor’s report, defendant failed to raise any triable issue with respect to the lack of medical necessity. Consequently, plaintiff is entitled to summary judgment on its $2,670.40 claim.”
Golia, concur:
“In the case at bar, the plaintiff presented a medical report in its motion for summary judgment by a Dr. Raufov dated February 26, 2003. That document effectively rebutted the findings of the defendant’s peer review doctor who did not consider the February 26, 2003 report when making his findings that resulted in a denial of benefits form being served on the claimant.
Inasmuch as the defendant failed to address this issue in its opposing papers, the majority was correct in holding that plaintiff’s prima facie showing of medical necessity went unrebutted and therefore was deemed proven.”
