The standard to rebut a peer review was raised a few notches

Pan Chiropractic, P.C. v Mercury Ins. Co.
2009 NY Slip Op 51495(U)(App. Term 2d Dept. 2009)

Sensing the belief that no-fault actions were starting to follow the trend in Ins Law 5102(d) actions (the no-fault threshold statute), the Defendant appealed the order finding that Plaintiff’s affidavit of merit was sufficient to raise a triable issue of fact, in opposition to Defendant’s summary judgment motion.

Factually, this case involved $660 worth of diagnostic testing. Defendant’s peer review set forth numerous reasons and cited to various authorities for the proposition that the diagnostic testing was either never necessary or not necessary in relation to the patient’s presented symptomology.

Plaintiff relied on the reports annexed to Defendant’s papers and concluded that the services were indeed medically necessary. There was no meaningful disagreement with Defendant’s doctor’s medical rationale for finding that the services lacked medical necessity.

The Court in applying the meaningful disagreement standard found in 5102(d) causation cases rightly found that Plaintiff failed to rebut the inference that the services lacked medical necessity.

I would opine that a provider, in successfully opposing this type of motion, is going to have to send these cases to their own peer doctor to perform a utilization review in their own right in order to raise a triable issue of fact in opposition to a defendant’s motion for summary judgment. This should be interesting.