Elmont Open MRI & Diagnostic Radiology, P.C. v Travelers Indem. Co.Elmont Open MRI & Diagnostic Radiology, P.C. v Travelers Indem. Co.
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
Elmont Open MRI & Diagnostic Radiology, P.C. Doing Business as ALL COUNTY OPEN MRI & DIAGNOSTIC RADIOLOGY as Assignee of YONG KI MA, Respondent,
against
Travelers Indemnity Company, Appellant.
Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated May 11, 2009. The order denied defendant‘s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, and defendant‘s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the services rendered were not medically necessary. Plaintiff opposed the motion, and the District Court denied the motion, finding that defendant had failed to establish the timely mailing of its denial of claim forms. The instant appeal by defendant ensued.
Contrary to the determination of the District Court, the affidavits of defendant‘s litigation examiner and claims support specialist were sufficient to establish that defendant had timely mailed the denial of claim forms in accordance with defendant‘s standard office practices and procedures (see St. Vincent‘s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). The claims were denied on the ground that the services rendered were not medically necessary.
Defendant‘s affirmed peer review report, submitted in support of its motion, established, prima facie, that there was a lack of medical necessity for the services at issue. The fact that defendant‘s peer review doctor considered medical records from plaintiff, as well as from other providers who had treated the assignor, in forming his opinion as to the medical necessity of the
Moreover, we note that, while defendant‘s peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. In the case at bar, defendant was not attempting to prove that the assignor was injured as documented in his medical records, or that he was treated as set forth in those records. Instead, defendant‘s peer review doctor simply opined that, assuming the facts set forth in the assignor‘s records were true, the treatment allegedly provided by plaintiff was not medically necessary. Therefore, such underlying medical records were not being used for a hearsay purpose (see e.g. Matter of State of New York v Wilkes, ___ AD3d ___, 2010 NY Slip Op 07006 [4th Dept 2010]; Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff‘s argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided plaintiff was not medically necessary is irrelevant.
We further note that plaintiff did not demonstrate that it needed the records from the other providers in order to raise a triable issue of fact as to whether the services at issue which plaintiff provided were medically necessary when they were rendered (see
Accordingly, the order is reversed and defendant‘s motion for summary judgment dismissing the complaint is granted.
Nicolai, P.J., and LaCava, J., concur.
Molia, J., taking no part.
Decision Date: December 16, 2010