Opposing a Medical Necessity Motion: Why the 'Know-It-All' Affidavit Fails

Key Takeaways

• An affidavit from a provider’s principal who never examined the patient and offers no medical evidence cannot rebut an IME report on medical necessity.
• Without qualified medical proof, the provider fails to raise a triable issue of fact and the insurer wins summary judgment.
• The opposing affidavit must meaningfully engage the IME doctor’s findings — boilerplate “the treatment was necessary” statements are worthless.
• The same evidentiary logic applies to peer-review-based denials of post-IME services.

Court Demands Real Medical Evidence in No-Fault Cases

No-fault insurance providers frequently challenge the medical necessity of treatments through Independent Medical Examinations (IMEs). When healthcare providers want to contest these IME findings, they cannot simply submit generic affidavits from practice principals who never examined the patient. A recent Appellate Term decision demonstrates that courts are becoming more stringent about requiring actual medical evidence to create genuine disputes over medical necessity reversals.

This ruling reinforces the principle that New York no-fault insurance law requires substantive medical foundation to challenge professional IME conclusions. Healthcare providers must present qualified medical opinions based on actual patient examination or treatment records, not conclusory statements from administrators.

The Decision

Jason Tenenbaum’s Analysis:

Gaetane Physical Therapy, P.C. v Great N. Ins. Co., 2015 NY Slip Op 50698(U)(App. Term 2d Dept. 2015)

“In opposition to the motion, plaintiff submitted an affidavit by its principal, who did not indicate that she had examined the assignor or otherwise offer any medical evidence to rebut the conclusions set forth in the IME report. Thus, plaintiff failed to raise a triable issue of fact as to medical necessity”

This is the “know it all” affidavit that does not offer medical evidence for post IME services. It is nice to see the Court taking a stand on this issue.

The Legal Framework: How Medical Necessity Motions Work

A short doctrinal refresher puts the holding in context. Under the no-fault regulation (11 NYCRR Part 65), an insurer that wishes to deny benefits for lack of medical necessity must issue a timely denial and, in litigation, support its position with admissible medical proof — typically a sworn IME report or peer review setting forth a factual basis and medical rationale for the conclusion that the services were not necessary.

Once the insurer carries that burden on a CPLR 3212 summary judgment motion, the burden shifts. The provider must come forward with medical evidence creating a genuine factual dispute — usually an affidavit or affirmation from a treating or examining health professional that meaningfully rebuts the IME doctor’s findings. Summary judgment practice is unforgiving here: conclusory assertions, even from a physician, do not raise a triable issue of fact.

Gaetane sits at the intersection of those rules. The plaintiff’s principal swore that the treatment was necessary, but she never said she examined the assignor and attached no medical evidence at all. The Appellate Term treated the affidavit as a nullity on the necessity question.

Why This Matters for Providers, Carriers, and Counsel

For medical providers, the decision is a roadmap for what not to do. After an insurer cuts off benefits based on an IME, continuing treatment is billed at the provider’s risk. If the carrier moves for summary judgment, the opposition must come from someone with actual clinical knowledge of the patient — the treating professional — and it must engage the IME report point by point: what findings were wrong, what objective tests support continued care, why the patient’s condition still required treatment.

For insurers and claims professionals, Gaetane confirms that a well-drafted IME report supported by a proper IME cut-off creates a powerful summary judgment posture. When the opposition is a principal’s “know-it-all” affidavit, the motion should be granted, sparing the carrier a trial.

For litigators on both sides, the case is a reminder that medical necessity disputes are won and lost on the quality of the medical paper. The court did not say providers can never rebut an IME — the door, as the original title put it, has creaked open — but the key only turns with genuine medical evidence.

Practice Pointers

• Providers: have the treating professional, not the corporate principal, sign the opposing affidavit. State expressly that the affiant examined the patient, and attach or incorporate the treatment records relied upon.
• Rebut specifically. Quote the IME findings and explain, in clinical terms, why they are wrong or why post-IME treatment remained necessary despite them.
• Carriers: when opposing papers come from a non-examining principal, say so prominently — Gaetane makes that defect dispositive.
• Both sides: remember the rule applies equally to peer-review denials; the rebuttal must engage the peer reviewer’s stated rationale.

Frequently Asked Questions

What evidence does a provider need to oppose an IME-based summary judgment motion?

A sworn statement from a health professional with actual knowledge of the patient — ideally the treating provider — that rebuts the IME doctor’s specific conclusions with medical reasoning and objective findings. Records alone or a principal’s say-so will not suffice.

Why was the principal’s affidavit rejected in Gaetane Physical Therapy v Great Northern?

Because the principal never indicated she examined the assignor and offered no medical evidence rebutting the IME report. Without an examination or supporting medical proof, the affidavit was conclusory and failed to raise a triable issue of fact.

Can a provider bill for treatment after an IME cut-off?

Yes, but at its own risk. If the insurer denied based on a proper IME, the provider must be prepared to prove medical necessity for post-IME services with qualified medical evidence if the dispute reaches litigation or arbitration.

Related Resources

• A simple medical necessity decision
• And now the Ninth and Tenth follow lockstep with the Second, Eleventh and Thirteenth
• Another Medical Necessity?
• Medical necessity and peer review requirements in NY no-fault — the firm’s cluster hub on medical necessity
• Browse the firm’s Legal Encyclopedia for more on no-fault doctrine and procedure
• No-Fault Defense practice — representation of carriers in medical necessity litigation