Conclusory affidavits will not defeat an insurance carrier's summary judgment motion

Bronze Acupuncture, P.C. v Mercury Ins. Co.
2009 NY Slip Op 51219(U)(App. Term 2d Dept. 2009)

This case hints at what a medical provider must proffer in its answering papers to stave off an insurance carrier's summary judgment motion, based upon the lack of medical necessity of a rendered service.

In this case, a conclusory or boilerplate affidavit attesting to a service's lack of medical necessity is insufficient to raise an issue of fact.

Here is the holding:

"The papers submitted by defendant in support of its motion, including the affirmed IME [*2]report and an affidavit executed by the acupuncturist who performed the IME, established, prima facie, a lack of medical necessity for the services at issue. The opposing affidavit submitted by plaintiff's treating acupuncturist merely stated that she disagreed with the results of the IME report without setting forth any facts to support her conclusion. Consequently, the opposition papers failed to raise a triable issue of fact as to medical necessity."

This should be compared to the operative language inPark Slope Medical and Surgical Supply Inc. v. New York Central Mut. Fire Ins. 22 Misc.3d 141(A)(App. Term 2d Dept. 2009) , where the court held the following: "[p]laintiff submitted an affidavit from Dr. Shapiro in which he stated that he disagreed with the peer review report and affidavit furnished by defendant because he concluded that the supplies provided were medically necessary. Since the affidavit of Dr. Shapiro demonstrated the existence of an issue of fact as to medical necessity."

The next question will be what facts are sufficient to support the conclusion that a service is medically necessary. I guarantee it is not going to be the regurgitation of the documents a peer review doctor examined. I also guarantee it is not going to be the boilerplate one size fits all affidavit we saw in Park Slope, which we can probably now say is bad law.

I know there will be many more of these types of appeals, and this issue will be answered at some time in the future.