Key Takeaway
Court rules medical affirmation insufficient when not based on patient examination and fails to rebut defendant's examining physician findings.
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.
In no-fault insurance litigation, the quality and foundation of medical evidence can make or break a case. When healthcare providers challenge insurance denials for medical necessity, courts require robust medical support that meets specific evidentiary standards. The Forest Drugs case demonstrates a critical principle: medical affirmations must be properly grounded in actual patient examinations to carry weight in court proceedings.
This appellate decision highlights the court’s scrutiny of medical evidence in summary judgment motions. When insurers retain examining physicians to evaluate the medical necessity of treatments, providers seeking to challenge these determinations cannot simply submit generic medical opinions. The medical professional offering the counter-opinion must have examined the patient and provide a meaningful rebuttal to the insurer’s examining physician.
This requirement reflects broader principles about the foundation needed for medical evidence in no-fault cases and the importance of comprehensive medical documentation in challenging medical necessity reversals.
Case Background
In Forest Drugs v Global Liberty Insurance Co. of New York, a pharmacy or medical provider (as assignee of the injured party) sued Global Liberty to recover no-fault benefits that had been denied on the ground that the treatment lacked medical necessity. Global Liberty moved for summary judgment, submitting the report of its examining physician who had evaluated the patient and concluded that the treatment at issue was not medically necessary. In opposition, the plaintiff submitted a medical affirmation — but critically, the medical professional who authored it had not examined the patient. Furthermore, the affirmation did not meaningfully engage with the specific findings of Global Liberty’s examining physician. The Appellate Term, First Department, found the plaintiff’s opposition insufficient to raise a triable issue of fact, and the case underscores the rigorous evidentiary standards applied to medical evidence in no-fault summary judgment practice.
Jason Tenenbaum’s Analysis:
Forest Drugs v Global Liberty Ins. Co. of N.Y., 2018 NY Slip Op 51708(U)(App. Term 1st Dept. 2018)
“In opposition, the medical affirmation submitted by plaintiff 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 physician”
Legal Significance
The Forest Drugs decision illustrates a two-pronged requirement for medical evidence submitted in opposition to a no-fault medical necessity denial. First, the medical opinion must be grounded in an actual examination of the patient — not merely a review of records or a generic statement about the category of treatment. Second, the opposing medical professional must directly address and rebut the specific findings of the insurer’s examining physician. A conclusory statement that treatment was medically necessary, without engaging with the contrary medical findings, will not survive summary judgment.
This standard has significant implications for how providers litigate no-fault medical necessity disputes. It discourages the submission of boilerplate medical affirmations that fail to address the particular patient’s condition, the particular treatments rendered, and the particular objections raised by the insurer’s medical expert. Courts have increasingly demanded that the opposing medical evidence demonstrate a meaningful medical disagreement — not just a general assertion that the treatment was appropriate. The holding also aligns with the broader trend in New York no-fault jurisprudence of requiring specificity and substance in medical proof at the summary judgment stage.
Practical Implications
Providers contesting medical necessity denials should ensure that the physician submitting the opposing affirmation has actually examined the patient, ideally within a reasonable time of the treatment period in dispute. The affirmation should address each specific finding in the insurer’s peer review or IME report and explain why those findings are medically incorrect or incomplete. Relying on a physician who has never seen the patient — or submitting an affirmation that merely recites the treatments rendered without addressing the insurer’s medical rationale — will result in an insufficient opposition. This is particularly critical in cases involving ongoing treatment plans where the insurer’s examining physician has identified a specific point at which treatment ceased to be necessary.
Key Takeaway
Healthcare providers must ensure their medical affirmations are based on actual patient examinations when challenging insurance denials. Generic or unfounded medical opinions will not survive summary judgment motions, particularly when the insurance company presents evidence from examining physicians. Proper medical foundation is essential for creating triable issues of fact in no-fault litigation.
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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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Frequently Asked Questions
What is a medical necessity denial in no-fault insurance?
A medical necessity denial occurs when the insurer's peer reviewer determines that treatment was not medically necessary based on a review of the patient's medical records. The peer reviewer writes a report explaining why the treatment does not meet the standard of medical necessity. To challenge this denial, the provider or claimant must present medical evidence — typically an affirmation from the treating physician — explaining why the treatment was necessary and rebutting the peer review findings.
How do you challenge a peer review denial?
To overcome a peer review denial, you typically need an affirmation or affidavit from the treating physician that specifically addresses and rebuts the peer reviewer's findings. The treating physician must explain the medical rationale for the treatment, reference the patient's clinical findings, and demonstrate why the peer reviewer's conclusions were incorrect. Generic or conclusory statements are insufficient — the response must be detailed and fact-specific.
What criteria determine medical necessity for no-fault treatment in New York?
Medical necessity is evaluated based on whether the treatment is appropriate for the patient's diagnosed condition, consistent with accepted medical standards, and not primarily for the convenience of the patient or provider. Peer reviewers assess factors including clinical findings, diagnostic test results, treatment plan consistency with the diagnosis, and whether the patient is showing functional improvement. Treatment that is excessive, experimental, or unsupported by objective findings may be deemed not medically necessary.
Can an insurer cut off no-fault benefits based on one IME?
Yes, an insurer can discontinue benefits after a single IME doctor concludes that further treatment is not medically necessary or that the claimant has reached maximum medical improvement. However, the IME report must be sufficiently detailed and the denial must be issued within 30 days under 11 NYCRR §65-3.8(c). The treating physician can submit a rebuttal affirmation explaining why continued treatment is necessary, forming the basis for challenging the cut-off at arbitration.
What is a peer review in no-fault insurance?
A peer review is a paper-based evaluation where a licensed medical professional reviews the patient's records and renders an opinion on whether the billed treatment was medically necessary. Unlike an IME, the peer reviewer does not examine the patient. The peer review report must be detailed, address the specific treatment at issue, and explain the medical rationale for the opinion. Generic or boilerplate peer reviews that fail to address the patient's individual clinical presentation may be found insufficient.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
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.
If you need legal help with a medical necessity matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
