Medical necessity – rebutting a peer review

In Westcan Chiropractic v Hertz Claim Management, a treating doctor’s affidavit was enough to defeat the insurer’s summary-judgment motion. It answered the peer review and raised a factual dispute about medical necessity. The court did not order the bill paid, reject peer review as a method, or give treating doctors an automatic evidentiary preference.

Historical note — Last reviewed: September 2026. Westcan, decided July 13, 2015, concerns the sufficiency of opposition on a particular motion; AutoOne v Eastern Island, 136 AD3d 722 (2016), later cited it when treatment affidavits and records raised a similar factual dispute.

The motion Westcan actually won

Hertz submitted a sworn peer review that supplied a factual basis and medical rationale for its conclusion that the services were unnecessary. Westcan responded with an affidavit from one of the treating doctors. The Nassau County District Court nevertheless granted the insurer’s motion and dismissed the claim.

The Appellate Term, Second Department, reversed. Its July 2015 opinion said the treating doctor’s affidavit meaningfully addressed the report and sufficiently rebutted its conclusions. That was enough to require further proceedings. The insurer’s report had cleared the initial evidentiary hurdle; the response created an issue that could not be decided on those motion papers.

The distinction matters when describing the result to a provider or claims professional. Westcan kept its assigned-benefits action alive. It did not obtain a final determination that the treatment was necessary. The note was published eight days after the decision; the older citation’s parenthetical year of 2014 was incorrect.

What the short opinion does not tell us

The reported decision does not reproduce the peer review or the treating doctor’s full affidavit. It does not identify a particular examination finding, treatment response, medical guideline or error that made the rebuttal sufficient. Those details should not be supplied from assumptions about how chiropractic treatment usually works.

Nor does the opinion say that direct patient contact makes a treating physician’s opinion inherently superior to a paper review. Its explanation concerns what the affidavit said in response to this report. A treatment relationship identifies the witness’s connection to the case; it does not answer the medical argument by itself.

For the same reason, Westcan is not a ready-made affidavit template. Counsel can use the decision to identify the task—answering the reviewer’s reasoning—but still needs the actual medical record and a witness able to explain it. A case citation cannot fill a gap in that witness’s knowledge.

Vinings supplies the earlier comparison

Westcan relied on Vinings Spinal Diagnostic v GEICO, 29 Misc 3d 132(A) (2010). There, both sides sought summary judgment. The carrier established timely denial and submitted a supported peer review. The provider’s owner, a chiropractor, supplied an admissible affidavit addressing that review.

The factual dispute defeated a judgment for either side. The Appellate Term removed the provider’s award while leaving the carrier’s cross-motion denied. A successful rebuttal therefore did not establish the provider’s entitlement to payment as a matter of law.

That is a useful way to read the same phrase across decisions. “Sufficient rebuttal” describes evidence that raises a triable issue in the particular procedural setting. It should not be translated into “the provider proved the treatment necessary” without examining what relief the court actually granted.

The precedent Westcan cited for the insurer’s showing

Westcan cited American Chiropractic Care v Praetorian, 42 Misc 3d 145(A) (2014), when describing the factual and medical support supplied by the insurer. Read the rest of that earlier decision too: Praetorian did not ultimately obtain summary judgment.

The insurer established timely denial and submitted its chiropractor’s sworn peer review. The treating chiropractor then supplied a sworn letter of medical necessity sufficient to create a factual dispute. The Appellate Term affirmed denial of the insurer’s motion.

The connection helps explain Westcan’s reasoning without inventing clinical details. A citation supporting the insurer’s initial showing can come from a case in which the opposing party still defeated the motion. Initial sufficiency and the final disposition are separate parts of the analysis.

It also puts the document’s label in perspective. American Chiropractic involved a sworn letter; Westcan described an affidavit. Neither opinion makes the name at the top of the response the decisive fact. The court evaluated whether the medical evidence left an issue requiring further resolution.

Compare the unsuccessful response in Bronx Mega Care

The Bronx Mega Care note concerns another July 2015 decision, this time involving an IME rather than a paper peer review. The carrier supported both timely denial and its medical conclusion. The provider submitted a doctor’s affirmation, but the court found that it did not meaningfully address the examiner’s conclusions. The insurer obtained dismissal.

Read together, the cases show why the existence of a medical affidavit is not the complete test. Westcan had a response the court found sufficient; Bronx Mega Care had a medical response the court found insufficient. Neither opinion publishes enough of the underlying reports to construct a universal sentence-by-sentence formula.

A response may need to explain why a finding supports continued treatment, why the report overlooks relevant evidence, or why the medical conclusion does not follow from the stated facts. These are questions for the medical witness and the particular record, not facts the Westcan court necessarily found.

How the later AutoOne decision fits

In AutoOne v Eastern Island, the Second Department accepted the insurer’s proof of timely denial and its initial medical showing. The provider’s affidavits and treatment records nonetheless raised a triable issue. Further proceedings were necessary to decide medical necessity.

The official opinion lists Jason Tenenbaum, P.C., with Eric Wahrburg of counsel, for the insurer-appellant. That is a verifiable connection between this archive’s discussion and the firm’s appellate work. The insurer did not win the requested summary judgment; the decision affirmed denial of its motion.

AutoOne also keeps the mailing question separate from the medical question. The provider failed to create an issue about timely denial, yet succeeded on medical necessity. Losing one argument in opposition did not decide every issue on the motion.

Read the motion record before choosing a response

Start with the services and dates the insurer actually challenges. Compare those with the scope of the review and the records on which the reviewer relied. Then identify the report’s stated reason for finding the service unnecessary. A response directed to a different treatment period or a different medical question may miss the issue.

Next separate form from substance. CPLR 3212(b) addresses the proof needed on summary judgment. A physician’s signature or credentials do not make an otherwise conclusory response persuasive. Conversely, a substantive response still needs to be presented in an admissible form.

Finally identify the result being requested. Is the provider trying to defeat the insurer’s motion, obtain its own judgment, or prepare for a medical-necessity trial? The Metropolitan Diagnostic trial note shows the next distinction: a qualified witness can testify and still fail to persuade the fact-finder. Westcan resolved no such trial credibility question.

These steps are a way to organize a review of the file, not a promise that a challenge will succeed. The concise appellate opinions are most useful when they direct attention to the evidence actually submitted.

Denial timing remains a separate issue

The 2026 decision in American Transit v Beach Medical Rehabilitation precluded a medical-necessity defense where the insurer failed to raise an issue about timely mailing of its denials. The court then separately rejected a causation defense on the evidence presented.

That later case does not displace Westcan’s discussion of rebuttal. It shows why counsel should establish which defenses remain available before treating a medical disagreement as the only issue in the claim.

Connect to the Encyclopedia

The medical-necessity case directory connects this note with the archive’s report, rebuttal and trial decisions:

• Bronx Mega Care: a medical affirmation that did not answer the IME
• Metropolitan Diagnostic: why a qualified expert still lost at trial
• Elmont Open MRI: sufficient peer-review evidence in opposition
• Five Boro Medical: attorney argument and a split denial-timing result
• Ortho-Med: supporting records and a request for discovery

For review of a particular no-fault claim or motion record, contact the Law Office of Jason Tenenbaum, P.C. and read about our no-fault defense practice.