Total Equip. Llc v. Praetorian Ins. Co.
| Decision Date | 09 November 2011 |
| Docket Number | No. CV–046858–10.,CV–046858–10. |
| Citation | 932 N.Y.S.2d 889,34 Misc.3d 295,2011 N.Y. Slip Op. 21398 |
| Parties | TOTAL EQUIPMENT, LLC, As Assignee of Latasha James, Plaintiff,v.PRAETORIAN INSURANCE COMPANY, Defendant. |
| Court | New York District Court |
OPINION TEXT STARTS HERE
Friedman, Harfinest, Kraut & Perlstein, for Plaintiff.Law Offices of Moira Doherty, for defendant.FRED J. HIRSH, J.
Defendant moves for summary judgment. Plaintiff cross-moves to compel discovery.
Plaintiff Total Equipment, LLC (“Total”) sues as assignee of Latasha James (“James”) to recover first party no-fault benefits for durable medical equipment provided to James.
Defendant asserts it is entitled to summary judgment because it timely denied the claim on the grounds the medical equipment provided to James was not medically necessary based upon the peer review report of Ronald A. Csillag, D.C.
Dr. Csillag reviewed and relied upon medical reports and records, no-fault claims forms and a police accident report outlined in his report in preparing his peer review report. None of the reports or records Dr. Csillag relied upon in preparing his peer review report have been provided to the court. Dr. Csillag's specifically relied upon the information contained in the medical reports and records he reviewed including James complaints, the diagnoses made and the treatment provided as the factual basis for his opinion that the medical equipment supplied was not medically necessary.
Plaintiff cross-moves to compel defendant to comply with its discovery demands. Plaintiff seeks to obtain copies of the medical reports and records reviewed by Dr. Csillag in preparing his peer review. Plaintiff claims that it needs these reports and records so that to determine whether the factual assertions made in Dr. Csillag's peer review report are accurate and to have those records and reports reviewed by a chiropractor or other appropriate health care professional so it can possibly obtain an affidavit establishing the medical necessity of the medical equipment Total provided to James.
Defendant establishes a prima facie entitlement to judgment as a matter of law by establishing the timely mailing of a denial and the submission of an affirmed or sworn to peer review which sets forth a factual basis and a medical rationale for the peer reviewer's conclusion the treatment, testing, medical equipment were not medically necessary. Mosad Medical, P.C. v. Praetorian Ins. Co., 33 Misc.3d 131(A), 2011 WL 4952654 (App. Term 2nd, 11th and 13th Jud. Dists.2011); and Neomy Medical, P.C. v. Geico Ins. Co., 32 Misc.3d 137(A), 2011 WL 3585940 (App. Term 2nd, 11th & 13th Jud. Dists.2011).
If the defendant tenders such proof, the plaintiff must submit an affidavit from a health care provider that meaningfully refers to and rebuts the conclusions contained in the peer review report. Bath Medical Supply, Inc. v. New York Central Mut. Fire Ins. Co., 30 Misc.3d 137(A), 2011 WL 565328 (App. Term 2nd, 11th & 13th Jud. Dists.2011); and Vincent Medical Services, P.C. v. Geico Ins. Co., 29 Misc.3d 141(A), 2010 WL 5116892 (App. Term 2nd, 11th & 13th Jud. Dists.2010).
CPLR 3212(f) permits the court to deny a motion for summary judgment if facts essential to justify opposition may exist but cannot be stated. A motion for summary judgment must be denied where the party opposing the motion has not had a reasonable opportunity to conduct discovery before the motion was made. James v. Aircraft Service International Group, 84 A.D.3d 1026, 924 N.Y.S.2d 114 (2nd Dept.2011).
A party opposing a motion for summary judgment based upon the need for additional discovery must establish the additional discovery might lead to relevant evidence or facts essential to the opposition are within the exclusive control of the defendant. Davis v. Rochdale Village, Inc., 83 A.D.3d 991, 922 N.Y.S.2d 473 (2nd Dept.2011).
In this case, the plaintiff has established that it has not had a meaningful opportunity to conduct and obtain discovery. Plaintiff served a demand for interrogatories and a document demand upon defendant in March 16, 2011. Defendant did not respond or object to either the demand for interrogatories or the document demand. Rather than responding to plaintiff's discovery demands, defendant moved for summary judgment.
One of the items demanded in plaintiff's document demand is the no-fault file. The defendant's no-fault file should contain the medical reports and records Dr. Csillag reviewed in preparing the peer review report. The no-fault file may also contain other medical reports and records not reviewed by Dr. Csillag. This material is exclusively in the possession of the defendant.
These medical reports when reviewed by another health care professional might provide plaintiff with the information needed to oppose defendant's summary judgment motion by providing an affidavit or affirmation from a health care provider that meaningfully refers to and rebuts the opinions expressed and conclusion reached by the peer reviewer. Plaintiff could also use the information contained in the no-fault file to establish there are errors or shortcomings in the peer review report. Novacare Medical, P.C. v. Travelers Property Cas. Ins. Co., 31 Misc.3d 1205(A), 2011 WL 1226956 (District Ct. Nassau Co.2011).
This motion raises significant question the proof a defendant must present to the court when moving for summary judgment in an action brought to recover first party no-fault benefits where the motion is based upon a peer review report that found the treatment provided, the testing performed or the medical supplies furnished were not medically necessary. More specifically, this motion raises issues regarding the factual basis for the peer reviewer's medical rationale.
Dr. Csillag, the peer reviewer, submitted a sworn to peer review report that states he reviewed various medical reports and records and the prescription for durable medical equipment in issue. He summarizes the medical findings contained in those reports and records including the diagnoses of injuries sustained by James. Based upon these facts, Dr. Csillag offers his opinion the medical supplies were not medically necessary for the treatment of the injuries James sustained. Praetorian denied plaintiff's claim based upon Dr. Csillag's opinion the medical supplies were not medically necessary for the treatment of the injuries James sustained.
The court was not provided with any of the material Dr. Csillag reviewed because the medical reports and records and other material reviewed by the peer review doctor “... are not part of defendant's prima facie showing.” Active Imaging, P.C. v. Progressive Northeastern Ins. Co., 29 Misc.3d 130(A), 2010 WL 4242210 (App.Term, 2nd, 11th & 13th Jud. Dists.).
A party moving for summary judgment must tender evidentiary proof in admissible form establishing an entitlement to judgment as a matter of law. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985); and Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980)
A no-fault insurance carrier is required to pay all necessary medical expenses incurred by a party injured in a motor vehicle accident. “... provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses may be incurred as a result of the injury” Insurance Law 5102(a)(1).1
The term “necessary medical expenses” is not defined by the Insurance Law [Insurance Law Article 51] or the No–Fault Regulations. 11 NYCRR Part 65.
The courts have struggled to find a workable definition of the term “medical necessity”. See, CityWide Social Work & Psy. Serv., P.L.L.C. v. Travelers Indemnity Co., 3 Misc.3d 608, 615, 777 N.Y.S.2d 241 (Civil Ct. Kings Co.2004).
While the term medically necessary is regularly used in the appellate decisions involving actions to recover first party no-fault benefits, the appellate courts have never provided a definition for this term. Thus, the most workable definition of medical necessity is those practices that are in accordance with generally accepted medical standards. Id.
In this case in order to determine if the medical supplies and equipment provided to James by Total were medically necessary, the court must determine whether a reasonably prudent chiropractor would under similar circumstances have prescribed these medical devices for James. Taormina v. Goodman, 63 A.D.2d 1018, 406 N.Y.S.2d 350 (2nd Dept.1978).
In order to obtain summary judgment based upon a peer review report that finds the treatment, testing and/or medical supplies were not medically necessary, the defendant insurer must provide the court with a sworn or affirmed peer review report establishing a factual basis and a medical rationale for the conclusion that the treatment, testing and/or supplies were not medically necessary. Alfa Medical Supplies, Inc. v. Auto One Ins. Co., 33 Misc.3d 128(A), 2011 WL 4948999 (App.Term, 2nd, 11th & 13th Jud. Dists.2011); MSSA Corp. v. Redland Ins. Co., 32 Misc.3d 141(A), 2011 WL 3689380 (App.Term, 2nd, 11th & 13th Jud. Dists.2011); Five Boro Psychological Services, P.C. v. Utica Mutual Ins. Co., 31 Misc.3d 150(A), 2011 WL 2505175 (App.Term, 2nd, 11th & 13th Jud. Dists.2011); and Elmont Open MRI & Diagnostic Radiology, P.C. v. Travelers Indemnity Co., 30 Misc.3d 126(A), 2010 WL 5186659 (App.Term, 9th & 10th Jud.Dists.2010).
The first issue the court must confront when deciding a motion for summary judgment based upon a peer review is the “factual basis” of the peer reviewer's factual basis.
The peer reviewer does not have first hand or personal knowledge of the injured parties complaints, injuries and/or treatment. The peer reviewer has not examined or spoken to the injured party. The peer reviewers knowledge of the injured parties complaints, injuries and treatment is based upon the information contained in the medical reports and...
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