Another Medical Necessity?

In New York’s no-fault insurance system, disputes over medical necessity arise constantly — and they are among the most hotly contested issues in no-fault litigation. Insurance carriers routinely challenge whether treatments provided to injured patients were truly medically necessary, and healthcare providers must respond with credible medical evidence. The quality of that evidence, however, varies widely.

Medical necessity determinations are critical in New York no-fault insurance law because they directly determine whether providers receive reimbursement for services. Courts must evaluate the medical evidence presented by both sides — peer review reports, expert affidavits, and treatment records. When medical opinions conflict, courts typically find that genuine issues of material fact exist, preventing summary judgment and requiring a trial to resolve the dispute.

The quality and substance of medical evidence varies significantly from case to case, as demonstrated in various medical necessity reversals where seemingly similar evidence has led to different outcomes.

The DRD Med Case: Conflicting Opinions Despite Weak Evidence

Jason Tenenbaum’s Analysis:

DRD Med., PC v Global Liberty Ins. Co. of N.Y, 2020 NY Slip Op 50385(U)(App. Term 1st Dept. 2020)

“We agree with Civil Court that the conflicting medical opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the physical therapy treatments underlying plaintiff’s claims”

The insurer moved for summary judgment based on its peer review, which concluded the physical therapy was not medically necessary. The provider opposed the motion with an affidavit of merit from a medical professional. The Appellate Term affirmed the Civil Court’s decision to deny summary judgment — finding that two opposing medical opinions created a triable issue.

What makes this case notable, as Jason observes, is that the affidavit submitted by the provider had “a bunch of verbiage but no substance.” It looked like medical evidence without delivering the clinical specificity that distinguishes strong opposition from a weak one. Yet the court still found the case could not be decided on motion.

Why Conflicting Opinions Create Triable Issues

New York courts apply a well-settled rule: when the parties submit conflicting expert opinions on a disputed issue of fact — including medical necessity — summary judgment is generally inappropriate. The rationale is that evaluating the credibility and weight of competing expert testimony is a function for the factfinder, not the court.

This rule applies across all types of no-fault claims:

• Physical therapy necessity disputes
• Chiropractic and acupuncture treatment challenges
• Diagnostic testing reimbursement (MRIs, EMGs, etc.)
• Durable medical equipment claims

The threshold question at summary judgment is whether the opposing party has raised any genuine issue of material fact — not whether their evidence is persuasive or well-crafted. A court does not weigh evidence at this stage. If two medical professionals hold differing views on the same treatment, that disagreement typically prevents judgment as a matter of law.

The Problem with “Verbiage Without Substance”

Jason’s observation cuts to the heart of a recurring issue in no-fault litigation: providers sometimes oppose summary judgment motions with affidavits that are long on legal language and short on clinical reasoning. These affidavits may include:

• Generic statements that treatment was “medically necessary based on the history and examination”
• Lengthy boilerplate descriptions of the injury without case-specific analysis
• Conclusory assertions that the peer reviewer’s findings were “incorrect” without medical explanation

Despite these shortcomings, such affidavits may survive summary judgment simply by creating a facial conflict with the insurer’s peer review. The DRD Med. case is an example of exactly this dynamic — and it raises important questions about whether the summary judgment standard is being applied rigorously enough.

As Jason notes, this outcome is “no different than cases where the carrier has won” on the motion — except here, the substantive quality of the provider’s evidence was weaker. The inconsistency suggests that the outcome may turn less on the strength of the medical reasoning and more on the procedural posture of the motion.

What This Means for Practitioners on Both Sides

For Healthcare Providers and Their Counsel

Winning at summary judgment is easier than it may appear when you can produce any medical opinion opposing the insurer’s peer review. But surviving summary judgment does not mean winning at trial. A weak affidavit of merit that avoids dismissal may still collapse under cross-examination or against a well-prepared defense expert.

Providers should invest in quality medical opinions that:

• Address the peer reviewer’s specific findings and methodology
• Reference the patient’s objective test results and clinical findings
• Explain the causal connection between the accident injuries and the treatment provided
• Identify the medical standards and guidelines supporting the treatment plan

For Insurance Carriers and Defense Counsel

When a carrier obtains a strong peer review and moves for summary judgment, the key is anticipating the provider’s opposition. If the carrier’s peer review is detailed and well-supported, weak opposition affidavits may be more vulnerable to a reply challenging their sufficiency. Carriers should analyze whether the provider’s affidavit actually responds to the specific rationale in the peer review or merely recites generic conclusions.

Courts have in some cases granted summary judgment even over conflicting opinions when the opposing expert’s affidavit was found to be wholly conclusory. Understanding how courts in your particular venue — the Appellate Term First or Second Department, for example — treat the sufficiency of medical affidavits is essential to formulating the right motion strategy.

The Broader Pattern in No-Fault Medical Necessity Litigation

The DRD Med. case is part of a larger pattern in no-fault litigation where the summary judgment battleground has become the primary arena for resolving medical necessity disputes. With thousands of claims in the pipeline at any given time, both sides have strong incentives to resolve cases on motion rather than at trial.

This means that the quality of the motion papers — and the supporting medical evidence — determines outcomes far more often than the quality of the underlying treatment. For no-fault defense practitioners, structuring the peer review to survive opposition is as important as the peer reviewer’s clinical conclusions themselves.

For providers and personal injury practitioners, understanding the threshold for creating a triable issue — even with modest evidence — is essential to protecting revenue streams and client recoveries.

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