Loading ...
Sorry, an error occurred while loading the content.

The Rogak Report: 02 November 2004 ** No Fault - Medical Supplies **

Expand Messages
  • Lawrence Rogak
    IF NO-FAULT DENIAL IS LATE, INSURER CANNOT OPPOSE SUMMMARY JUDGMENT BY RAISING ISSUE OF COST OF MEDICAL SUPPLIES OR THEIR NECESSITY King s Medical Supply Inc.
    Message 1 of 1 , Nov 2, 2004
    • 0 Attachment
      IF NO-FAULT DENIAL IS LATE, INSURER CANNOT OPPOSE SUMMMARY JUDGMENT
      BY RAISING ISSUE OF COST OF MEDICAL SUPPLIES OR THEIR NECESSITY

      King's Medical Supply Inc. v. Country-Wide Insurance Company, NYLJ
      11/02/04 (Civil Court, Kings County) (O'Shea, j.)

      This no-fault lawsuit arose out of an automobile accident on June 24,
      2002, in which Robert Nieves, plaintiff's assignor, was injured.
      Plaintiff, a medical equipment supplier, allegedly provided Mr.
      Nieves with medical supplies for which it submitted a claim for $705
      to Country Wide. The insurer denied plaintiff's claim on the ground
      that the supplies were not medically necessary. Plaintiff moved for
      summary judgment, arguing that defendant's denial was untimely and
      without any evidentiary support. Defendant, in opposition, asserted
      that plaintiff had no prima facie case, no evidence as to the
      documented cost of the supplies provided.

      In support of its motion for summary judgment, plaintiff submitted a
      copy of its NF-3 proof of claim form, accompanied by an affidavit of
      its billing manager attesting on personal knowledge to the issuance
      of the claim, and a copy of defendant's denial form (NF-10),
      indicating defendant received the claim on August 28, 2002, and
      denied it on November 21, 2002. In this case, the NF-10, "which is
      admissible as an admission by defendant, is sufficient to establish
      plaintiff's prima facie entitlement to summary judgment, i.e. that
      the claim was transmitted, that defendant received it, and that
      defendant failed to pay or deny the claim within 30 days of receipt,"
      held the Court. "Nothing more is required."

      Country-Wide "fails to overcome plaintiff's prima facie case for
      several reasons," held the Court. "First, the denial is untimely,
      and, therefore, defendant is precluded from asserting any defense
      other than fraud or lack of coverage. Second, the stated reason for
      the denial in defendant's NF-10 is that 'an extended delay between
      the motor vehicle accident and the beginning of treatment suggest not
      medically necessary and raises issue of casuality.' It is by now
      firmly established that the burden is on the insurer to prove that
      the medical services or supplies in question were medically
      unnecessary. In addition, a denial premised on lack of medical
      necessity must be supported by evidence such as an independent
      medical examination, peer review, or examination under oath, setting
      forth a sufficiently detailed factual basis and medical rational for
      the claim's rejection. Defendant's conclusory, unsupported statement
      in its denial form is wholly inadequate to defeat plaintiff's motion
      for summary judgment."

      Finally, Country Wide's defense to the summary judgment motion --
      that plaintiff did not document the cost of the supplies provided as
      part of its claim -- "is without merit." Under the regulations, no-
      fault benefits available for medical supplies are limited to 150% of
      their documented cost. "However, in this court's view, 'documented
      cost' is not an element of plaintiff's prima facie case. As is the
      case with issues of medical necessity, any questions about the amount
      claimed for medical supplies can and should be asked through a
      request for verification and, if possible, resolved at the claim
      stage, not by a court on a motion for summary judgment or at trial.
      Defendant had the opportunity to ask plaintiff to document the costs
      of the supplies when it received the claim. Because defendant failed
      to do so within the time permitted by the regulations, defendant is
      precluded from raising it now as a defense to plaintiff's summary
      judgment motion."

      Plaintiff's motion was granted in all respects.
    Your message has been successfully submitted and would be delivered to recipients shortly.