Elmont Open MRI & Diagnostic Radiology, P.C. v Country Wide Ins. Co. (2004 NY Slip Op 50946(U))

District Court of Nassau County, First District

12979/04

Scott Fairgrieve, J.

Plaintiff moves for an order, pursuant to CPLR 3212, granting summary judgment in its favor in this action to recover fees for medical treatment provided under the no-fault law to its assignor, Rachael Charriah. The defendant opposes this motion and the plaintiff has served a reply.

Plaintiff’s assignor was involved in a motor vehicle accident on January 5, 2004. Plaintiff submitted a claim to defendant in the sum of $879.73, no part of which has been paid. The defendant admits receipt of the claim on March 4, 2004 and denial of the entire claim was made on March 22, 2004.

The motion papers have established that the plaintiff submitted its proof of claim and that the defendant issued its denial within thirty days of receipt of the claim. The denial was based upon a lack of medical necessity.

Plaintiff posits that the denial was defective since it was based on the opinion of a nurse. [*2]Therefore, the defendant has not met its burden of proof of demonstrating that the services rendered, an MRI, lacked medical necessity as a nurse is a layman and her testimony may not be used to establish the standard of care in the medical field.

It is the defendant’s position that the file-based review methodology is an entrenched procedure used in many professions to determine the necessity and quality of the services performed. Further, the defendant asserts it would be unreasonable to require the denial of coverage to be based on the ground of medical necessity to be made in the first instance by a peer review doctor exclusively.

As stated in Choicenet Chiropractic v. Allstate Insurance Co., 2003 NY Slip Op 50672U:

“The defense of lack of medical necessity may be asserted on the basis either of peer review or a medical examination as implicitly provided by Insurance Regulation 11 NYCRR 65-3.8(b)(4).”

The Court held in Abraham v. Country-Wide Insurance Company, 3 Misc. 3d 130 (App Term, 2d and 11th Jud Dists 2004):

“As a general rule, for purposes of medical diagnosis and treatment, a nurse is a mere lay informant (e.g. Dombrowski v. Moore, 299 A.D.2d 949, 951, 752 N.Y.S.2d 183 [2002] whose medical opinions and conclusions drawn from the facts are incompetent and inadmissible (Nucci v. Proper, 270 A.D.2d 816, 817, 705 N.Y.S.2d 144 [2000], aff’d 95 N.Y.2d 597, 744 N.E.2d 128, 721 N.Y.S.2d 593 [2001]; People v. Russell, 165 A.D.2d 327, 332, 567 N.Y.S.2d 548 [1991]; see Prince, Richardson on Evidence § 7-101 [Farrell 11th ed]).”

Since the defendant has failed to prove lack of medical necessity through a medical examination or peer review, its denial is ineffective. Therefore, the defendant is precluded from offering a defense of lack of medical necessity despite the timeliness of the denial Amaze Medical Supply, Inc. v. Eagle Insurance Co., 2 Misc. 3d 128A (App Term, 2nd and 11th Jud Dists 2003).

Upon a review of the papers submitted, the Court concludes that the plaintiff has satisfied its burden of demonstrating entitlement to summary judgment. The defendant has failed to come forward with proof to establish the existence of triable issues of fact. Summary judgment, therefore, is granted in favor of the plaintiff.

Let judgment be entered in favor of the plaintiff in the sum of $879.73, plus statutory interest from April 4, 2004, together with statutory attorney’s fees along with costs and disbursements. Attorney’s fees not to exceed $850.00. The other issues raised by the defendant need not be addressed. [*3]

So ordered:

DISTRICT COURT JUDGE

Dated: August 26, 2004

CC:Friedman, Harfenist, Langer & Kraut

Jaffe & Nohavicka

SF/mp