- The testimony of defendant’s doctor in not sufficient to meet the defendant’s burden of proof with regard to the affirmative defense of lack of medical necessity. Choicenet Chiropractic, P.C., v. Allstate Ins. Co., 2003 N.Y. Misc. LEXIS 413, 2003 NY Slip Op 50672[U] (App. Term 2nd Dept.)
- “It is not for a judge to second-guess a doctor who decides that a medical tests is necessary for his diagnosis and treatment when the only support for the denial is a peer review performed by a doctor who did not examine the patient. Thus, while it may be possible to make out a prima facie case for the affirmative defense of lack of medical necessity for services or treatment with a file-based peer review, it is not possible to do so with regard to a test performed within a reasonable time following an accident and prior to the patient even arguably reaching maximum medical improvement. … [T]he court cannot apply hindsight and conclude that the plaintiff’s doctor was wrong to prescribe the test because the findings on the test did not result in a material change in the course of treatment.“ Alliance Medical Office, P.C., v. Allstate Insuracne Company 196 Misc.2d 268; 764 N.Y.S.2dk 2003 N.Y. Misc. KEXIS 794
- “[W]hile the Appellate Term has indicated that “file-based peer review” can raise a triable issue of fact such that plaintiff would not be entitled to summary judgment, (Park Health Ctr. Rockaway Blvd. Med. P.C. v. State Wide Ins. Co., 2003 N.Y. Misc. LEXIS 623, 2003 NY Slip Op 50921(U) (2nd Dept.). Rockaway Blvd. Med. P.C. v. Travelers Prop. Cas. Corp., 2003 N.Y. Misc. LEXIS 485, 2003 NY Slip Op 50842(U)(2003) (referring to 11 NYCRR 65-3.8 [b][4])), there is no case that states that file-based peer review is sufficient to meet defendant’s burden at trial with regard to a diagnostic test, after testimony by plaintiff’s treating doctor that the test was necessary for hid diagnosis and treatment.
- “…health services should be necessary for treatment of the injures sustained…” 11NYCRR §65.15(o)(vi) and 11NYCRR 65-1.1, Section 1.
- A denial premised on lack of medical necessity must be supported by evidence, such as independent medical examination, peer review or examination under oath, “setting forth a sufficiently detailed factual basis and medical rationale for the claim’s rejection”. Amaze Medical Supply (Bermudez) v. Eagle Insurance Co., 2004 NY Slip Op 51701(U) (App Term, 2nd & 11th Jud Dists 2004); A.B. Medical Serv. v. Geico Ins. Co., 2 Misc 3d 26, 773 NYS2d 773 (App Term, 2nd & 11th Jud Dist 2003).
Peer Review that “concludes that there was no medical necessity due to the lack of sufficient information upon which the reviewer could make such a determination”, is insufficient because the insurer did not “fully and explicitly” set forth the reasons for the denial of claim, “did not inform (the provider) of
- “It is not for a judge to second-guess a doctor who decides that a medical tests is necessary for his diagnosis and treatment when the only support for the denial is a peer review performed by a doctor who did not examine the patient. Thus, while it may be possible to make out a prima facie case for the affirmative defense of lack of medical necessity for services or treatment with a file-based peer review, it is not possible to do so with regard to a test performed within a reasonable time following an accident and prior to the patient even arguably reaching maximum medical improvement. … [T]he court cannot apply hindsight and conclude that the plaintiff’s doctor was wrong to prescribe the test because the findings on the test did not result in a material change in the course of treatment.“ Alliance Medical Office, P.C., v. Allstate Insuracne Company 196 Misc.2d 268; 764 N.Y.S.2dk 2003 N.Y. Misc. KEXIS 794
- “[W]hile the Appellate Term has indicated that “file-based peer review” can raise a triable issue of fact such that plaintiff would not be entitled to summary judgment, (Park Health Ctr. Rockaway Blvd. Med. P.C. v. State Wide Ins. Co., 2003 N.Y. Misc. LEXIS 623, 2003 NY Slip Op 50921(U) (2nd Dept.). Rockaway Blvd. Med. P.C. v. Travelers Prop. Cas. Corp., 2003 N.Y. Misc. LEXIS 485, 2003 NY Slip Op 50842(U)(2003) (referring to 11 NYCRR 65-3.8 [b][4])), there is no case that states that file-based peer review is sufficient to meet defendant’s burden at trial with regard to a diagnostic test, after testimony by plaintiff’s treating doctor that the test was necessary for hid diagnosis and treatment.
- “…health services should be necessary for treatment of the injures sustained…” 11NYCRR §65.15(o)(vi) and 11NYCRR 65-1.1, Section 1.
- A denial premised on lack of medical necessity must be supported by evidence, such as independent medical examination, peer review or examination under oath, “setting forth a sufficiently detailed factual basis and medical rationale for the claim’s rejection”. Amaze Medical Supply (Bermudez) v. Eagle Insurance Co., 2004 NY Slip Op 51701(U) (App Term, 2nd & 11th Jud Dists 2004); A.B. Medical Serv. v. Geico Ins. Co., 2 Misc 3d 26, 773 NYS2d 773 (App Term, 2nd & 11th Jud Dist 2003).
Peer Review that “concludes that there was no medical necessity due to the lack of sufficient information upon which the reviewer could make such a determination”, is insufficient because the insurer did not “fully and explicitly” set forth the reasons for the denial of claim, “did not inform (the provider) of
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