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 [2009]”
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.
One Response
What’s also wonderful (and shocking) about this holding is that the court never specified that a rebuttal of the peer report – lacking documentation or not – HAD to be included in the provider’s affidavit demonstrating medical necessity of the items prescribed.
Note how the applicable passage simply states, “[P]laintiff’s submission of an affidavit prepared by the assignor’s treating chiropractor, specifying the assignor’s medical conditions and describing the intended benefits of each of the medical supplies prescribed, was sufficient to raise a triable issue as to medical necessity,” with nothing more.