Opinion
2012-02-22
TOTAL EQUIPMENT LLC a/o Gordon T. Springs, Plaintiff(s), v. STATE FARM FIRE AND CASUALTY CO., Defendant(s).
Friedman, Harfenist, Kraut & Perlstein, Lake Success, for plaintiff. Picciano & Scahill, P.C., Westbury, for defendant.
Friedman, Harfenist, Kraut & Perlstein, Lake Success, for plaintiff. Picciano & Scahill, P.C., Westbury, for defendant.
MICHAEL A. CIAFFA, J.
Defendant renews its motion for summary judgment dismissing plaintiff's no-fault action, based upon a defense of lack of medical necessity. The motion is supported by an affirmed peer review report of Kevin S. Portnoy, D.C. Plaintiff opposes the motion. Its opposition includes a rebuttal peer review report from a non-treating doctor, Lloyd Kupferman, D.C.
Defendant's prior motion was denied without prejudice to renewal following production of the medical records that Dr. Portnoy reviewed ( see decision and order dated May 31, 2011). Defendant avers that it made such production as part of its June 22, 2011 response to plaintiff's first set of interrogatories. Plaintiff does not contest the sufficiency of defendant's response to interrogatories in its papers opposing defendant's motion.
Defendant's moving papers include adequate proof of defendant's timely denial of plaintiff's claim for no-fault benefits. Through affidavits from a claims representative and a claims support services supervisor, defendant established prima facie that the denial was timely mailed in accordance with defendant's standard office practices and procedures. See St. Vincent's Hosp. v. GEICO, 50 A.D.3d 1123, 857 N.Y.S.2d 211 (2d Dept. 2008). Plaintiff's opposition fails to raise a triable issue respecting the timely mailing of the denial.
In addition, the affirmed peer review report of Dr. Portnoy sets forth a facially sufficient factual basis and medical rationale for his opinion challenging the medical necessity of the durable medical equipment that is the subject of the denial. Although defendant's proof, once again, fails to annex the underlying medical records reviewed by its peer doctor, the Appellate Term's current decisions hold that submission of such medical records is “not part of defendant's prima facie showing.” See Active Imaging, P.C. v. Progressive Northeastern Ins. Co., 29 Misc.3d 130(A), 2010 N.Y. Slip Op. 51842(U), 2010 WL 4242210 (App. Term, 2d Dept.). On the other hand, plaintiff acted within its rights, in opposing defendant's prior motion, by seeking an opportunity to obtain production of the underlying medical records in order to mount meaningful opposition to defendant's motion. See East 75th St. Diagnostic Imaging v. Clarendon Nat'l Ins. Co., 33 Misc.3d 573, 934 N.Y.S.2d 636 (Dist. Ct. Nassau Co.). By allowing such discovery in this matter, the Court reasoned that it “might lead to relevant evidence” that could justify opposition to defendant's motion ( see decision and order dated May 31, 2011).
Inexplicably, plaintiff's opposition to the instant motion neither submits the underlying medical records reviewed by Dr. Portnoy, nor explains their absence. While such a failure to submit the underlying records is not necessarily fatal to plaintiff's argument, it underscores the weakness of plaintiff's opposition. In other cases, no-fault plaintiffs have frequently defeated insurer motions by utilizing the underlying medical records to undermine the stated factual basis and/or medical rationale for the peer doctor's opinion. Plaintiff, here, has made no attempt to do so.
Moreover, upon close examination of the plaintiff's rebuttal proof, the absence of the underlying medical records weighs heavily against plaintiff's argument. According to Dr. Kupferman's rebuttal report, he takes issue with Dr. Portnoy's opinion based principally on his “review of this patient's medical records.” Although Dr. Kupferman's “independent review” of the medical records supposedly supports his contention that Dr. Portnoy's “clinical reasoning” is “flawed,” the Court is essentially being asked to determine, from this equally “naked” rebuttal peer review report, that triable issues exist. The Court declines to do so upon the instant record.
Critically, under Appellate Term precedent (1) submission of the underlying medical records is not part of the defendant's prima facie burden, see Active Imaging, P.C. v. Progressive Northeastern Ins. Co., supra, and (2) opposing expert proof will not be sufficient to defeat the defendant's motion unless it “meaningfully” refers to, and rebuts, the opinion of defendant's peer review doctor. See, e.g. Bath Medical Supply, Inc. v. N.Y. Central Mut. Fire Ins. Co., 30 Misc.3d 137(A), 2011 N.Y. Slip Op. 50189(U), 2011 WL 565328 (App. Term, 2d Dept.); Vinings Spinal Diagnostic, P.C. v. GEICO, 29 Misc.3d 132(A), 2010 N.Y. Slip Op. 51897(U), 2010 WL 4485453 (App. Term, 2d Dept.); Pan Chiropractic, P.C. v. Mercury Ins. Co., 24 Misc.3d 136(A), 2009 N.Y. Slip Op. 51495(U), 2009 WL 2032906 (App. Term, 2d Dept.).
In this Court's opinion, any “meaningful” rebuttal opinion from a non-treating doctor must ordinarily include copies of relevant medical records that provide a factual basis and/or medical rationale for rebutting the otherwise adequate evidence from defendant's peer review expert. While defendant could have submitted the medical records as part of its motion, the Appellate Term holds that it need not do so to shift the burden to the plaintiff. At least where, as here, the plaintiff's rebuttal proof rests principally upon a medical records review by a non-treating doctor, plaintiff must submit those records to the Court in order to raise a legitimate triable issue of medical necessity. In their absence, submission of a naked, conclusory rebuttal report, by itself, is insufficient to raise a triable issue of medical necessity.
For all these reasons, the Court concludes that defendant's moving papers met its burden establishing entitlement to judgment as a matter of law, and that plaintiff's opposition fails to raise a triable issue of medical necessity. Accordingly, defendant's motion is GRANTED and the action is DISMISSED.
So Ordered.