February 9, 2005

Ocean Diagnostic Imaging P.C. v American Protection Ins. Co. (2005 NY Slip Op 50273(U))

Headnote

The court considered a case in which a medical service provider, Ocean Diagnostic Imaging P.C., sought to recover payment from American Protection Insurance Company for medical services it provided to an individual, Mohammed Rahman. American Protection had denied the claim based on a physician peer review conducted by Dr. Daniel G. Kassan, M.D., which stated that the MRIs were inappropriate and unnecessary. However, the court held that the peer review conducted was not admissible as it was not affirmed or sworn to by the physician. As a result, the court granted summary judgment in favor of Ocean Diagnostic Imaging P.C., and ordered American Protection to pay the plaintiff the sum of $1,758.40 with statutory interest, along with statutory attorney's fees and applicable costs and disbursements.

Reported in New York Official Reports at Ocean Diagnostic Imaging P.C. v American Protection Ins. Co. (2005 NY Slip Op 50273(U))

Ocean Diagnostic Imaging P.C. v American Protection Ins. Co. (2005 NY Slip Op 50273(U)) [*1]

Ocean Diagnostic Imaging P.C. v American Protection Ins. Co.

2005 NY Slip Op 50273(U)

Decided on February 9, 2005

Civil Court Of The City Of New York, Kings County

Thomas, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 9, 2005

Civil Court of the City of New York, Kings County

OCEAN DIAGNOSTIC IMAGING P.C. a/a/o Mohammed Rahman, Plaintiff,
against
AMERICAN PROTECTION INSURANCE COMPANY, Defendant.

307729/03

Delores J. Thomas, J.

Plaintiff moves for an order granting it summary judgment. The motion is granted.

Plaintiff, Ocean Diagnostic Imaging P.C. As Assignee of Mohammed Rahman (“Ocean Diagnostic”), commenced this action to recover the sum of $1,758.40 for medical services it provided to the assignor, Mohammed Rahman (“Rahman”), and its attorney’s fees [Summons And Complaint Plaintiff’s Exhibit A].

Defendant, American Protection Insurance Company (“American Protection”), opposes the motion in its entirety. Its counsel maintains that Ocean Diagnostic’s bills were properly denied [Affirmation In Opposition of Lawrence Chiarappo, Esq. dated May 28, 2004 Paragraph Five]. Defendant’s denial was based upon the Physician Peer Review conducted by Dr. Daniel G. Kassan, M.D. on March 2, 2003 [Defendant’s Exhibit B].

Dr. Kassan’s report stated the following: [*2]

There was no evidence of significant injury on physical examination of cervical spine or right knee that would support the need for MRI of cervical spine or right knee. The injuries described could be adequately evaluated with physical examination and close monitoring of progress.

Dr. Kassan concluded that the two MRIs “were inappropriate and without necessity.” He recommended that payment should not be made to the health care provider.

On March 13, 2003, American Protection denied the submitted claim based upon Dr. Kassan’s peer review.

Defendant’s denial stated that:

. . . there was no necessity for the MRI. Therefore, your bill is denied in full. Denial of Claim Form dated March 13, 2003 [Defendant’s Exhibit C].

Defendant sent the denial to plaintiff on March 13, 2003 [Affidavit of Kimberly Palmer dated May 26, 2004 Paragraph Seven].

In an action to recover first-party no-fault benefits for medical services rendered to its assignor, the health care provider establishes a prima facie entitlement to summary judgment by proof it submitted the statutory claim form setting forth the fact and the amount of loss sustained and that the payment of no-fault benefits was overdue (Star Medical Services P.C. v. Eagle Insurance Company, 2004 NY Slip Op. 24482, 2004 WL 2779347 [App Term, 2nd & 11th Jud Dists, December 1, 2004]).

The insurer must submit proof in admissible form to rebut plaintiff’s prima facie showing to oppose a motion for summary judgment (A.B. Medical Services, PLLC v. Lumbermens Mutual Casualty Company, 4 Misc 3d 86, [App Term, 2nd & 11th Jud Dists, 2004]).

An insurer may timely deny a claim on the ground that the medical treatment was medically unnecessary based upon a peer review. The peer review must set forth a sufficient factual foundation and medical rationale for the rejection of the claim (Triboro Chiropractic and Acupuncture P.L.L.C. v. Electric Insurance Company, 2 Misc3rd 135(A) [App Term, 2nd & 11th Jud Dists, 2004]). The peer review must be affirmed (A.B. Medical Services, PLLC v. New York Central Mutual Fire Insurance Company, 3 Misc 3d 136(A), 2004 WL 1302031 [App Term, 2nd & 11th Jud Dists, 2004]) or sworn to (A.B. Medical Services, PLLC v. Lumbermens Mutual Casualty Company, supra). If the report is not affirmed or sworn to, the court may grant summary judgment to the plaintiff (A.B. Medical Services, PLLC v. New York Central Mutual Fire Insurance Company, supra).

Notwithstanding defendant’s counsel’s representation [Chiarappo Affirmation Paragraph Nine], Dr. Kassan’s peer review was not affirmed. Nor did Dr. Kassan swear to the truth of the representations made in his report.

Since the peer review was not sworn to or affirmed, it is not admissible. Therefore, American Protection may not utilize Dr. Kassan’s report to oppose plaintiff’s application for summary relief.

In light of the fact that defendant has not offered any other basis for denying movant’s [*3]application, plaintiff’s motion for summary judgment is granted in its entirety.

The clerk is directed to enter judgment in favor of the plaintiff and against the defendant in the sum of $1,758.40 with statutory interest measured from August 5, 2003, along with statutory attorney’s fees, and applicable costs and disbursements.

This constitutes the decision and order of the court.

Dated:Brooklyn, New York

February 9, 2005

DELORES J. THOMAS

Judge Civil Court