Key Takeaway
Appellate Division rules on medical necessity defense requirements, establishing standards for rebutting IME reports in no-fault insurance cases.
This article is part of our ongoing medical necessity coverage, with 170 published articles analyzing medical necessity issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Arnica Acupuncture PC v Interboro Ins. Co., 2016 NY Slip Op 01434 (1st Dept. 2016)
This was my second foray at the Appellate Division (this time as a defendant and with permission from the Appellate Division) relating to the issue of “lack of medical necessity”. Specifically, what is necessary to defeat a facially proper IME.
I will be quite frank. I have seen the Appellate Terms hold that facially insufficient affidavits are sufficient to raise an issue of fact on the issue of medical necessity in opposition to an IME report. e.
This opinion is important relative to the following language: “Contrary to the Appellate Term’s finding, plaintiff’s supervising acupuncturist’s affidavit failed to raise a triable issue since it was not based on an examination of the patient, nor did it address or rebut the findings of objective medical tests detailed in the sworn report of defendant’s medical expert. The insured’s subjective complaints of pain cannot overcome objective medical tests”
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Three points.
(1) The report was not based upon an examination.
The examination does not have to be performed by the affiant. The examination, however, has to be in the record and in admissible form if a non treating provider wants to use somebody else’s examination. The issue of “contemporaneous” will have to be litigated another day.
(2) Must rebut finding of objective medical tests
This is where I think many affiants will get caught up. The recorded examination must itself be based upon sufficient objective evidence. This “objective basis” I think is where providers may get hung up. One of the reasons a provider may chose litigation over arbitration is because the provider is not good at documenting treatment, i.e., objective testing. The objective requirement will prove to be problematic to some providers.
(3) Subjective complaints alone will not fly.
One of the frustrating aspects of arbitration is when the Applicant harks on the subjective pains as a basis for further treatment or when a doctor in court on cross-examination has to admit that conservative treatment is palliative and will give short term relief to pain. I would surmise the relevant question becomes whether the treatment will assist in alleviating the documented objective symptomatology.
Would I call this decision ground breaking? I would say it is the culmination of many years of appeals on this issue.
The issue of peer reviews has not been touched by this case, and I hearken to add that I think a peer review rebuttal is probably a lot easier to put together than an IME rebuttal. Peer rebuttals can be predicted upon fantasy; IME rebuttals must be predicated upon fact.
Related Articles
- Why Conclusory Affidavits Fail: Building Strong Opposition to Medical Necessity Summary Judgment Motions
- Medical Necessity in No-Fault Insurance: Understanding the First Department’s Victory for Insurance Carriers
- An IME doctor must offer an explanation why he believes a Claimant’s diminished range of motion is self restricted
- A prima facie case of medical necessity?
- New York No-Fault Insurance Law
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Medical Necessity Disputes in No-Fault Insurance
Medical necessity is the most common basis for no-fault claim denials in New York. Insurers hire peer reviewers to opine that treatment was not medically necessary, shifting the burden to providers and claimants to demonstrate otherwise. The legal standards for establishing and rebutting medical necessity — including the sufficiency of peer review reports, the qualifications of reviewing physicians, and the evidentiary burdens at arbitration and trial — are the subject of extensive case law. These articles provide detailed analysis of medical necessity litigation strategies and court decisions.
170 published articles in Medical Necessity
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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