Friday, December 11, 2009

Lack of Factual Basis in Treating Chiropractor's Opinion on Medical Necessity Fails to Raise Triable Issue of Fact

Innovative Chiropractic, P.C. a/a/o Jose Ovalles v. Travelers Ins. Co.
(App. Term, 2nd Dept., decided 12/1/2009)

Travelers appealed from Queens Civil's denial of its cross motion for summary judgment dismissing the fourth and fifth causes of action of plaintiff's complaint.  The Civil Court held that an issue of fact existed as to the medical necessity of the services that formed the basis of those causes of action.

In REVERSING the order and granting summary judgment to Travelers on the two causes of action, the Appellate Term, Second Department, held that plaintiff's submission of an affidavit from the treating chiropractor which did not set forth any facts to support his conclusion that the billed services were medical  necessary failed to raise a triable of issue of fact, warranting summary judgment:
In support of its cross motion, defendant annexed an affidavit and a peer review report from the chiropractor who performed the peer review, which established a lack of medical necessity with respect to plaintiff's $425.44 claim. In opposition thereto, plaintiff's treating chiropractor submitted an affidavit in which he merely stated that the treatment was medically necessary, without setting forth any facts to support the conclusion. Consequently, plaintiff's opposition papers failed to raise a triable issue of fact as to medical necessity (see Bronze Acupuncture, P.C. v Mercury Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51219[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, defendant's cross motion for summary judgment dismissing plaintiff's fifth cause of action should have been granted (see Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [App Term, 1st Dept 2007]).

Practice pointer:  Unsworn or factually unsupported affidavits will not suffice to raise a triable issue of fact in opposition to a motion for summary judgment.

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