The First Department dismisses a medical necessity case

Medical necessity challenges represent one of the most potent defenses available to no-fault insurance carriers seeking to deny payment for healthcare services. Under New York’s no-fault insurance framework, carriers bear the initial burden of establishing a prima facie case that treatment was not medically necessary. This burden is typically satisfied through submission of an Independent Medical Examination (IME) report from a qualified physician who examines the patient and opines that treatment was not warranted based on the accident-related injuries.

Once a carrier establishes its prima facie case, the burden shifts to the healthcare provider to raise a triable issue of fact demonstrating that the treatment was indeed medically necessary. The quality and specificity of the provider’s opposition evidence becomes critical at this stage. Courts have established exacting standards for what constitutes sufficient rebuttal evidence, rejecting conclusory affidavits, subjective patient complaints unsupported by objective findings, and opinions from practitioners who have not recently examined the patient.

The First Department Appellate Term has been particularly rigorous in scrutinizing medical necessity opposition papers. In Mingmen Acupuncture Services, PC v Global Liberty Insurance Co. of N.Y., the court addressed what level of proof suffices to rebut an IME report containing normal range of motion findings and concluding that further treatment was not warranted. The decision provides important guidance on the temporal relationship between provider examinations and IME reports, and on the adequacy of treatment notes versus formal medical affidavits.

This case highlights the challenges acupuncture and chiropractic providers face when defending medical necessity claims. These practitioners often rely heavily on subjective patient pain complaints and treatment notes that may lack the detailed objective findings that courts require to overcome IME reports containing specific measurements and clinical observations.

Case Background

Global Liberty Insurance Company moved for summary judgment seeking dismissal of Mingmen Acupuncture Services’ claim for payment of acupuncture services provided to an insured following a motor vehicle accident. In support of its motion, the carrier submitted an IME report from an examining acupuncturist/chiropractor who performed range of motion testing and obtained normal results, concluding that the treatment rendered by the plaintiff was not medically necessary.

The plaintiff provider opposed the motion by submitting an affidavit from its principal. However, this affidavit suffered from significant evidentiary deficiencies that would prove fatal to the provider’s case. The affiant had not recently examined the patient, and the opposition relied primarily on prior treatment notes and the patient’s subjective complaints rather than contemporaneous objective medical findings. The Appellate Term was required to determine whether this evidence sufficed to raise a triable issue of fact on medical necessity.

Jason Tenenbaum’s Analysis

Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of N.Y., 2018 NY Slip Op 51358(U)(App. Term 1st Dept. 2018)

In opposition, the affidavit of plaintiff’s principal failed to raise a triable issue since it was not based on an examination of the assignor, nor did it meaningfully rebut the findings of defendant’s examining acupuncturist/chiropractor, including the normal results of the range of motion testing (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421 ; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156). Nor did the assignor’s subjective complaints of pain overcome the objective medical tests detailed in the IME report (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421; TC Acupuncture, P.C. v Tri-State Consumer Ins. Co., 52 Misc 3d 131, 2016 NY Slip Op 50978 ).”

The test is whether there was an examination of the Assignor that did not have normal findings. The open question here is the time period of when this examination must take place. In this case, there was an examination that pre-dated the IME by 2-3 months. This was not sufficient. There was also scribbled treatment notes, but that will not carry the day. Also, do not mistake this case for the “contemporaneous” fallacy that has plagued AAA arbitrators when sizing up medical evidence.

My sense is when all the leaves on this issue are shaken out (there is more shaking going on than you are probably aware of), arbitrators may be stuck engaging in the painful task of looking at blocks of post IME treatment and determining whether they are appropriate once the presumption of medical necessity in the first instance is rebutted. That is, the Charles Sloan and Burt Feilich rule may very well be the correct statements of law.

Legal Significance

The Mingmen Acupuncture decision establishes several critical evidentiary requirements for healthcare providers defending medical necessity summary judgment motions. First, the court’s rejection of the provider’s affidavit because it was not based on a recent examination of the patient clarifies that stale medical opinions carry little weight when rebutting current IME findings. An examination conducted two to three months before the IME does not provide a sufficiently contemporaneous assessment to contradict an IME examiner’s current findings of normal range of motion and lack of treatment necessity.

Second, the decision underscores the distinction between objective medical findings and subjective patient complaints. The court held that patient pain complaints alone cannot overcome objective clinical testing showing normal results. This principle applies across all medical specialties but carries particular weight in acupuncture and chiropractic cases where pain management rather than structural abnormalities often forms the primary treatment justification. Providers must document objective findings through range of motion testing, palpation findings, or other measurable clinical observations rather than relying solely on patient-reported symptoms.

Third, the court’s dismissal of “scribbled treatment notes” as insufficient rebuttal evidence reflects judicial skepticism toward informal documentation that may lack the detail and precision necessary to meaningfully challenge an IME report. Treatment notes must contain specific measurements, detailed examination findings, and clinical reasoning sufficient to demonstrate why treatment remained necessary despite an IME finding to the contrary. Generic notations of patient complaints or routine treatment descriptions will not suffice.

Practical Implications

For healthcare providers, Mingmen Acupuncture establishes that defending medical necessity cases requires proactive evidence gathering rather than reactive paper generation. Providers facing IME-based denials should immediately conduct comprehensive examinations of patients, documenting objective findings through standardized testing protocols. Range of motion measurements, orthopedic test results, palpation findings, and other quantifiable clinical observations must be recorded in detail sufficient to support expert affidavits controverting IME conclusions.

The decision also highlights the importance of maintaining detailed, legible treatment records that can withstand judicial scrutiny. Handwritten notes must be clear and comprehensive, containing sufficient clinical detail to demonstrate medical necessity. Providers should implement standardized documentation templates that require recording of objective findings at each visit, creating a contemporaneous record that can support opposition to medical necessity challenges without requiring additional examinations months or years after treatment occurred.

For insurance carriers, this decision provides a roadmap for successful medical necessity summary judgment practice. IME reports containing specific range of motion measurements and detailed clinical findings, coupled with clear opinions that treatment is not warranted, will typically establish prima facie cases that providers struggle to rebut. Carriers should ensure IME physicians perform comprehensive examinations, document all testing procedures, and provide detailed reasoning for their conclusions. When providers submit opposition papers relying on stale examinations or subjective complaints, carriers can invoke Mingmen Acupuncture to demonstrate the inadequacy of such proof.

Related Articles

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