Key Takeaway
Court ruling shows how insufficient peer review reports fail to establish prima facie burden in medical necessity motions under New York no-fault law.
Amherst Med. Supply, LLC v New York Cent. Mut. Fire Ins. Co., 2013 NY Slip Op 50586(U)(App. Term 1st Dept. 2013)
“The peer review report and accompanying affidavit submitted by defendant’s chiropractor failed to set forth a factual basis or medical rationale for his stated conclusion that the medical supplies here at issue were not medically necessary. The peer reviewer’s bald assertion that plaintiff’s assignor’s (voluminous) medical file lacked “useful/supportive information” — without essaying to explain what medical records, if any, were missing from the file — was insufficient to meet defendant’s prima facie burden of eliminating all triable issues as to medical necessity.”
I guess if you are going to make the assertion that a file is missing something, explain what it is. Yet, if the file was missing something, then Plaintiff would state that this is really a verification issue; unless, what was missing was a finding on a particular report that would necessitate, in the reviewers’ opinion, the utility of a supply or particular DME.
The Court later went on to state that the Plaintiff raised an issue of fact through the affidavit of its chiropractor, and cited the Second Department case of “Lee v McQueens, 60 AD3d 914 ”
This is what Lee says: “In any event, the affidavits prepared by the plaintiffs’ treating chiropractors were sufficient to raise a triable issue of fact. The chiropractor averred that, through the use of a goniometer, he found limitations in the plaintiffs’ cervical and lumbar spines, both on his contemporaneous and most recent examination of the plaintiffs, which he quantified in his affidavits”
Hard to make heads or tales of the citation except it should lead the reader to believe that this Court is looking at medical necessity case, in part, through a 5102(d) prism.
As a footnote, I would like to see more medical appropriateness cases viewed by this Court. This Court gives an analysis of the medical records that gives practitioners and triers of fact something to work with when citing a case.
Related Articles
- Why Conclusory Affidavits Fail: Building Strong Opposition to Medical Necessity Summary Judgment Motions
- A prima facie case of medical necessity?
- An IME doctor must offer an explanation why he believes a Claimant’s diminished range of motion is self restricted
- Medical Necessity in No-Fault Insurance: Understanding the First Department’s Victory for Insurance Carriers
- New York No-Fault Insurance Law
Legal Update (February 2026): Since this 2013 decision, Insurance Regulation 68 (11 NYCRR 65) has undergone multiple amendments affecting peer review standards and medical necessity determinations, and the fee schedule provisions under Insurance Law § 5102 have been substantially revised. Practitioners should verify current regulatory requirements for peer review reports and prima facie burden standards, as procedural and substantive requirements may have changed significantly.
