Sunday, June 21, 2009

Prima Facie

- “[T]he defendant has the burden to prove that the services rendered were not medically necessary. To clarify, this Court finds that a plaintiff sustains its burden of proof by presenting a timely and proper notice of claim, for which there has been no payments or proper denial. A timely notice of claim includes evidence that insured assignor was treated for injures sustained as a result of an automobile accident, and includes bills for treatment rendered by plaintiff with regard to those injures. Plaintiff does not to prove the medical necessity of its treatment. If plaintiff meets its burden, defendant must then prove that the treatment was not medical necessary. Should defendant meet that burden, plaintiff may present evidence to rebut defendant’s evidence on that issue. While this could be contrary to prior holdings in arbitration, those decision are not binding on this court and, in this Court’s opinion, are contrary to the intention of the insurance regulations and existing case law. Hobby v. CAN, 267 A.D.2d 1084 [4th Dept. 1999] [citing McKinney’s Cons. Laws of NY Book I, Statute §72).” Fifth Avenue Pain Control Center v. Allstate Insurance, 2003 NY Slip Op 50594U; 2003 N.Y. Misc. LEXIS 136, NYLJ 4/30/03, p. 23 col. 4 (Civil Court, Queens Co.)

- Medical Necessity is not an element of plaintiff’s proof of claim. Ones plaintiff presents a proper notice of claim, defendant has the burden of presenting medical evidence that the services were not medically necessary. Park Health Center v. Prudential Insurance Co., 2001 WL 1803364 (App. Term 2nd and 11th Jud. Dist. 20001); Oceanside Medical Healthcare, P.C. v. Progressive Insurance, 2002 WL 1013008 (Kings Civ. 5/9/2000).

- If Plaintiff does not have to present medical necessity in its proof of claim, and defendant must present medical necessity as a defense in a timely denial, it is only logical to conclude that defendant has the burden of proving medical necessity. Fifth Avenue Pain Control Center v. Allstate Insurance, 2003 NY Slip Op 50594U; 2003 N.Y. Misc. LEXIS 136, NYLJ 4/30/03, p. 23 col. 4 (Civil Court, Queens Co.)

- It is important to clarify the distinction between suits by medical providers for no-fault benefits based upon substantive denials versus procedural denials. While a suit for payment on the basis of an untimely denial would usually not require evidence in admissible form from a physician in opposition to a plaintiff's motion for summary judgment, a suit for payment challenging a denial for medical reasons requires evidence in admissible form from defendant's expert, to substantiate the denial issued by the insurance company. The case law is clear that the plaintiff's provision of services or equipment and the submission of the bill to the carrier is prima facie evidence that the goods or services were provided. (Park Health, supra.) Thus, an affirmation from a physician is necessary to support defendant's denial based on the conclusion that there [***7] was no medical necessity for the goods or services. The 12-page affirmation from defendant's attorney is unavailing in this regard. S&M Supply Inc., v. New York Central Mutual Fire Insurance Company, 193 Misc. 2d 282; 748 N.Y.S.2d 910; 2002 N.Y. Misc. LEXIS 1293.

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