Perhaps the Appellate Division, Second Department is reading this blog. Probably not. Either way, though, the App. Div. has overturned the decision by Justice Phelan of Supreme Court, Nassau County wherein it was held that insurance carriers were precluded from raising the defense of a lack of medical necessity as against a no-fault claim brought by an MRI provider. See Long Is. Radiology v Allstate Ins. Co., 2007 NY Slip Op 00496 (App. Div., 2d Dep't, 2007). You can see Justice Phelan's original order here.
As one might suspect, I think the App. Div. got it very, very right. And while they're surely not reading this blog, they did cite to two different cases I've discussed on the topic (see West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 2006 NYSlipOp 51871(U) (App. Term, 2d Dep't, 2006), and Precision Diagnostic Imaging, P.C. v Travelers Ins. Co., 8 Misc 3d 435 (Civ. Ct., Kings Cty., 2005)).
The core of the App. Div.'s new decision is as follows:
An assignee stands in the shoes of an assignor and thus acquires no greater rights than its assignor. Since the defense of lack of medical necessity may indisputably be raised by the defendants against the injured party, it is available as against radiologists who accept assignments of no-fault benefits. (Citations and internal quotation marks omitted.)
The various insurance defense firms who prosecuted the Long Is. Radiology appeal should be commended for their fine work.