Triable issue of fact as to medical necessity

Medical necessity remains one of the most frequently litigated issues in New York no-fault insurance cases, particularly when insurers deny claims for durable medical equipment and medical supplies based on peer review determinations. The burden-shifting framework governing summary judgment motions in medical necessity cases requires insurers to establish prima facie that the disputed treatment or supplies lacked medical necessity, typically through peer review reports from qualified physicians. Once the insurer meets this initial burden, the burden shifts to the plaintiff medical provider to raise a triable issue of fact regarding medical necessity through competent medical evidence.

The quality and specificity of medical affidavits submitted in opposition to summary judgment motions determines whether providers successfully defeat dismissal of their claims. Courts have consistently held that conclusory medical affidavits lacking specific connection between the patient’s condition and the disputed treatment fail to raise triable issues of fact. Conversely, medical affidavits that articulate the patient’s specific medical conditions, explain how those conditions necessitated the disputed treatment or supplies, and describe the therapeutic benefits of the treatment create factual disputes requiring trial resolution.

In the context of durable medical equipment and supplies, establishing medical necessity presents particular challenges because peer reviewers may question whether standard items like orthopedic braces, TENS units, or cervical pillows provide therapeutic benefit beyond placebo effect or comfort. Medical providers must therefore present opposition evidence that articulates specific medical justifications for each item based on the patient’s particular injuries and functional limitations. Generic statements about the benefits of supplies generally do not suffice; the affidavit must connect the specific supplies to the specific patient’s specific medical needs.

Case Background

In Five Boro Medical Equipment, Inc. v A. Central Insurance Company, the plaintiff medical supply company sought payment for durable medical equipment provided to a patient following a motor vehicle accident. The defendant insurer denied the claims based on peer review reports from a chiropractor who opined that the supplies lacked medical necessity. The insurer moved for summary judgment, submitting evidence that its denial of claim forms were timely and properly mailed, and that its peer review reports were in admissible form.

The plaintiff opposed the motion with a medical affidavit from a physician who had evaluated the patient and prescribed the disputed medical supplies. The affidavit specified the patient’s medical conditions resulting from the accident, including musculoskeletal injuries and functional limitations. For each category of medical supplies that had been denied, the physician’s affidavit described the intended therapeutic benefits and explained how those supplies addressed the patient’s specific medical needs arising from the accident-related injuries.

The Civil Court initially granted the defendant’s summary judgment motion, apparently finding the insurer’s peer review evidence sufficient to establish lack of medical necessity as a matter of law. The plaintiff appealed to the Appellate Term, First Department, arguing that its medical affidavit raised triable issues of fact precluding summary judgment.

Jason Tenenbaum’s Analysis

Five Boro Med. Equip., Inc. v A. Cent. Ins. Co., 2016 NY Slip Op 50412(U)(App. Term 1st Dept. 2016)

(1) The defendant-insurer’s motion for summary judgment dismissing this first-party no-fault action should have been denied. Initially, we note that Civil Court correctly determined that defendant’s documentary submissions were sufficient to establish, prima facie, that its denial of claim forms were timely and properly mailed (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169 ; AutoOne Ins./General Assurance v Eastern Island Med. Care, P.C., _____ AD3d_____, 2016 NY Slip Op 00916 ), and that the peer review reports of defendant’s chiropractor were in admissible form”

(2) However, the medical affidavit submitted by plaintiff, which specified the assignor’s medical conditions and described the intended benefits of each of the medical supplies at issue, was sufficient to raise a triable issue of fact as to medical necessity [*2](see AutoOne Ins./General Assurance v Eastern Island Med. Care, P.C., supra; Amherst Med. Supply, LLC v A. Cent. Ins. Co., 41 Misc 3d 133, 2013 NY Slip Op 51800).

I should have brought suit as “Autoone Ins Co. v. Eastern Island Med. Care, P.C”. I think I let someone work here name Plaintiff as “Autoone Ins./General Assurance”. That name is too long.

Substantively, the Court found issues of fact since the affidavit of merit related the supply to the injury. I am sure it is boilerplate, but look at the industry.

Legal Significance

The Appellate Term’s decision in Five Boro Medical Equipment reinforces established principles governing opposition to medical necessity summary judgment motions while providing practical guidance regarding the level of specificity required in medical affidavits. The court’s holding acknowledges that insurers can establish prima facie cases through proper peer review procedures, but emphasizes that medical affidavits connecting specific supplies to specific patient conditions create factual disputes requiring resolution at trial rather than on summary judgment.

The decision’s significance lies in its recognition that medical affidavits need not be exhaustive medical treatises to raise triable issues of fact. By holding that an affidavit specifying the patient’s medical conditions and describing the intended benefits of each disputed supply suffices to defeat summary judgment, the court adopted a practical standard that medical providers can satisfy without producing novel medical research or extensive literature reviews. The affidavit must demonstrate medical reasoning connecting the supplies to the patient’s needs, but need not conclusively prove medical necessity at the summary judgment stage.

This standard reflects appropriate application of summary judgment principles in the medical necessity context. Summary judgment is a drastic remedy appropriate only when no genuine factual disputes exist. Medical necessity inherently involves professional medical judgments about which qualified practitioners may reasonably disagree. When a plaintiff’s medical expert articulates a reasoned basis for concluding that supplies were medically necessary based on the patient’s specific condition, and the defendant’s peer reviewer reaches a contrary conclusion, a factual dispute exists that cannot be resolved on the papers.

The court’s citation to AutoOne Insurance/General Assurance v Eastern Island Medical Care and Amherst Medical Supply v A. Central Insurance Company demonstrates consistency in First Department jurisprudence requiring meaningful engagement with the patient’s specific medical condition in opposition affidavits. These precedents establish that generic affidavits discussing supplies in the abstract fail to raise issues of fact, but affidavits that address the particular patient’s particular needs succeed in defeating summary judgment.

Practical Implications

Medical providers and their attorneys defending against medical necessity summary judgment motions must ensure that opposition affidavits contain specific content connecting the disputed treatment or supplies to the patient’s documented medical conditions. The affidavit should identify each denied item, explain the patient’s medical condition requiring that item, and describe the therapeutic benefit that item provides for the patient’s specific condition. Generic statements about supplies being “necessary for the patient’s condition” without particularized explanation will not suffice.

Insurance carriers and defense counsel should not assume that peer review reports automatically entitle them to summary judgment. When providers submit medical affidavits containing the specificity demonstrated in Five Boro Medical Equipment, factual issues exist precluding dismissal. Defense counsel should carefully review opposition affidavits to determine whether they truly engage with the specific patient and specific supplies, or merely offer conclusory assertions. Where affidavits lack specificity, reply papers should identify those deficiencies.

The decision also highlights practical case naming considerations for medical providers. As Jason Tenenbaum notes, unnecessarily long party names create administrative burdens. Medical providers should use concise entity names that clearly identify them without excessive designation of doing business names or multiple corporate identities. While this is not a legal requirement, it reflects professional practice considerations.

Related Articles

• Why Conclusory Affidavits Fail: Building Strong Opposition to Medical Necessity Summary Judgment Motions
• A prima facie case of medical necessity?
• 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
• New York No-Fault Insurance Law