B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 2010 NY Slip Op 50144(U)(App. Term 2d Dept. [9th & 10th Jud. Dis.])
This case is interesting, besides citing two of my Mercury cases, because I do not know of another case from the 9th and 10th judicial districts where reverse summary judgment on the issue of medical necessity was granted to the insurance carrier. Also, this case continues the trend where the courts have told the medical providers that they need to marshal medical evidence in order to defeat an insurance carrier’s summary judgment motion.
As to the opinion:
“In support of defendant’s cross motion for summary judgment, defendant annexed, among other things, an affirmed peer review report by a doctor, an affirmation by a doctor who had performed an independent medical examination and an affidavit by a chiropractor who had performed an independent medical examination. Since the foregoing documents set forth a factual basis and medical rationale for the doctors’ and chiropractor’s opinions that the services, [*2]which are the subject of the claims at issue, were not medically necessary, defendant established, prima facie, a lack of medical necessity for such services (see Exclusive Med. Supply, Inc. v Mercury Ins. Group, 25 Misc 3d 136[A], 2009 NY Slip Op 52273[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).
In opposition to the cross motion, plaintiffs submitted an affirmation from the doctor who had treated plaintiffs’ assignor, which affirmation was apparently missing at least one page. The portion of the affirmation which was contained in the record was insufficient to raise a triable issue of fact as it did not meaningfully refer to, or discuss, the determination of defendant’s doctors and chiropractor (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, defendant’s cross motion, insofar as it sought to dismiss various claims of plaintiffs on the ground of lack of medical necessity, was properly granted (see Exclusive Med. Supply, Inc., 25 Misc 3d 136[A], 2009 NY Slip Op 52273[U]; Delta Diagnostic Radiology, P.C., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U]; Pan Chiropractic, P.C., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U]).
The bolded is mine.
