DECISION The Defendant moves for an Order pursuant to CPLR _3212 granting it summary judgment dismissal based upon the lack of medical necessity and policy exhaustion. The Assignor, Mr. Francisco Renderos was a bicyclist who alleged to be struck by a motor vehicle on April 24, 2016, sustaining injuries to his head, neck, lower back, left shoulder, left hand, and right hip. From June 2, 2016 to September 27, 2016, Mr. Renderos received chiropractic and physical therapy treatment. On August 26, 2016, Dr. Christopher Durant, MD, Board Certified in Orthopedic Surgery, performed surgery on Mr. Renderos. The Plaintiff, Custom Orthotics, LTD provided services and equipment related to the surgery. The Plaintiff submitted NF3 Forms which billed for dates of service on 8/18/20, 8/22/20, and 9/22/20, totaling $2189.52. The Defendant requested additional verification/information for the bills dated 8/18/20 and 8/22/20, but ultimately denied payment on all three bills based upon the lack of medical necessity. In order to obtain summary judgment on the issue of lack of medical necessity, the Defendant must establish the timely mailing of the denial which sets forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity. Active Care Medical Supply Corp. v. Erie Ins. Co., 64 Misc. 3d 139(A) ( App. Term, 2nd & 11th Jud. Dists. 2019). An objection to a lack of medical necessity must be supported by competent evidence such as an independent medical examination, a peer review or other proof which sets forth a factual basis and a medical rationale for denying the claim. See A.B. Med. Servs. PLLC v. Geico Cas. Ins. Co., 12 Misc. 3d 30 (App. Term, 2nd & 11th Jud. Dists. 2006); Amaze Med. Supply Inc. v. Eagle Ins. Co., 2 Misc. 3d 128(A) (App. Term, 2nd & 11th Jud. Dists. 2003). Once a Defendant submits evidence establishing a lack of medical necessity for the services rendered, the burden shifts to the Plaintiff to rebut the Defendant’s evidence. Foster Diagnostic Imaging, P.C. v. Clarendon Nat. Ins. Co., 33 Misc. 3d 138(A) (App. Term, 2nd & 11th Jud. Dists. 2011). In support of the motion, the Defendant submitted the peer review of Dr. Maury Harris, MD, Board Certified in Orthopedic Surgery. Dr. Harris reviewed the billing statements, report of the follow up evaluation dated 9/9/16, prescription, doctor’s note, MRI report of the left knee dated 7/13/16, North Shore University Hospital Medical Records dated 8/26/16 to 8/27/16, anesthesia record, surgical images, lab report, procedure note, MRI reports of the cervical and lumbar spines, medical clearance evaluation, another undated/unsigned evaluation, and chiropractic soap notes from 6/2/16 to 9/27/16. He stated that the MRI of the left knee revealed probable posttraumatic changes of the medial tibial condyle; tear of the anterior cruciate ligament, femoral attachment; injury of posterolateral corner structures which included the fibular collateral ligament, the common fibular attachment of the fibular collateral ligament and the biceps femoris tendon and the femoral attachment of the popliteus tendon; probable synovitis; patella alta; discoid lateral meniscus, and medial patellar plica. Dr. Harris quoted an article by Medline Plus published by the US National Library of Medicine: “Arthroscopy may be recommended for the following knee problems: torn meniscus; torn or damaged anterior or posterior cruciate ligament; inflamed or damaged lining of the joint; misalignment of the kneecap (patella), small pieces of broken cartilage in the knee joint; removal of a Baker cyst, some fractures of the bones of the knee.” It is significant to note that Dr. Harris referred to the 2009 version of the Medline Article, which presumably was the most updated article in 2016, when the peer review was conducted. However, the link to the article provided by Dr. Harris has been updated as of September 2020. The updated Medline Article states that arthroscopy may also be recommended for a torn or damaged collateral ligament. Dr. Harris opined that the standard of care for soft tissue injury should be a conservative treatment program of approximately 6 to 8 weeks. He also opined that surgical intervention is only warranted if the symptoms are progressive or worse after conservative treatment. As a result, Dr. Harris concluded that the services and equipment related to the surgery of 8/22/20 and billed on 8/18/20, 8/22/20, and 9/22/20, totaling $2189.52, were not medically necessary. The Court finds that the Defendant failed to meet its burden in establishing that the services and equipment billed on 8/18/20, 8/22/20, and 9/22/20 were not medically necessary. Ordinarily, a medical expert’s affirmation providing a medical rationale and factual basis for the determination of the lack of medical necessity is sufficient to establish the lack of necessity of services. Quality Custom Medical Supply, Inc. v. Citywide Auto Leasing, Inc., 59 Misc. 3d 150(A) ( App. Term, 2nd & 11th Jud. Dists. 2018). However, where the affirmation provides conclusory, inconsistent or contradictory information, the affirmation is insufficient to meet its burden. Samer v. Deasi, 179 AD3d 860 (2nd Dept. 2020) (expert affirmation insufficient when conclusory, speculative and self-contradictory); Kandel v. Kurzman, 24 AD3d 613 (2nd Dept. 2005)(Defendant failed to meet its burden for summary judgment because the records submitted by the Defendant contradicted certain aspects of Defendant’s argument). Here, the Dr. Harris’ affirmation is conclusory and contradictory. In his affirmation, he states that surgical intervention is only warranted after 6 to 8 weeks of conservative treatment. However, his affirmation states that he reviewed the chiropractic soap notes from 6/2/16 to 9/27/16, which indicates that Mr. Renderos treated for approximately twelve weeks before the procedure. In addition, Dr. Hill cites the Medline article which states that an arthroscopy is recommended for a torn meniscus, torn ACL and torn or damaged collateral ligament, all of which Mr. Renderos presented, but yet Dr. Harris fails to address the reasoning for his opinion, thereby making his affirmation conclusory. Even if the Court found that Dr. Harris’ report met the burden for summary judgment, the affirmation by Dr. Christopher Durant, MD submitted by the Plaintiff in opposition to the motion stating that the continuous knee pain, restricted range of motion, tenderness, MRI findings, ACL rupture, meniscal tear, and failure to respond to conservative treatment were indicators for arthroscopic surgery, in addition to his conclusion that the services and equipment provided in the disputed bills were medically necessary, would have defeated the motion for summary judgment. The Court also finds that the Defendant failed to meet its burden for summary judgment on the issue of policy exclusion. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986). Business records may be considered admissible evidence as long as they meet the requirements of CPLR _4518. The Defendant submitted the affidavit of Ms. Kline, the Associate Director for the handling of all claims for Nationwide, which merely stated in conclusory fashion that the policy was exhausted. In addition, the computer log and other business records submitted did not meet the requirements of CPLR _4518. The Court also finds that neither party met their burden on the issue of whether the Defendant properly addressed and mailed verification requests to the Plaintiff and whether the Plaintiff received the requests. The Defendant’s affidavits generally describing the mailing procedures for denial forms and requests for verification did not specifically address whether the request for the “note” from the doctor was generated and mailed or whether it sent a follow-up request as required. Ocean Diagnostic Imaging PC v. Lumbermens Mutual Casualty Company, 7 Misc3d 135(A) (App. Term, 2nd & 11th Jud. Dists. 2005); A.M. Medical Services, PC v. Progressive Casualty Ins. Co., 12 Misc.3d 129(A) (App. Term, 2nd & 11th Jud. Dists. 2006); Fair Price Medical Supply Corp. v. ELRAC Inc., 12 Misc3d 126(A) (App. Term, 2nd & 11th Jud. Dists. 2006); 11 NYCRR 65-3.6. Ms. Kline’s affidavit merely described general procedures and deferred to the affidavit of Mr. McLendon, the Mailroom Manager for details regarding the mailing procedures for verification requests. Based upon her review of the file, Ms. Kline states that the verification letters were mailed but not returned. These conclusory statements are insufficient to establish mailing. The affidavit of Mr. McLendon specifically addresses the denial letters but does not provide any information regarding verification requests. The submitted computer generated report which purports to track every action taken with each bill lacks the necessary foundation under the business records exception to be taken into consideration. CPLR _4518. Also, Plaintiff failed to provide an affidavit from someone with personal knowledge of the facts denying that the request was received and an attorney affirmation does not meet the burden. Zuckerman v. City, 49 NY2d 557 (1980). Accordingly, Defendant’s motion for an Order granting it summary judgment is hereby denied. Dated: October 5, 2020
