Medical Necessity Rebuttal Affidavits: When a Run-of-the-Mill Case Becomes a Roll of the Dice

Medical necessity disputes represent a cornerstone of New York No-Fault Insurance Law, where healthcare providers must prove their treatments were medically necessary to secure reimbursement from insurance companies. These cases often hinge on the quality of expert affidavits and rebuttal evidence presented by both sides.

Key Takeaways

• In Throgs Neck Multicare, P.C. v State Farm, the Appellate Term non-suited the plaintiff on a deficient rebuttal affidavit.
• In South Nassau, a rebuttal of comparable quality — differing mainly in paragraph count — was held to raise a triable issue of fact.
• Courts do not apply a consistent yardstick to deficient affidavits of merit; outcomes on similar papers can diverge sharply.
• The only reliable protection is a rebuttal that meaningfully engages the peer reviewer’s stated rationale, point by point.

When insurance companies challenge the medical necessity of treatments through summary judgment motions, healthcare providers must respond with compelling rebuttal affidavits from qualified medical experts. The strength of these rebuttals can determine whether a case proceeds to trial or gets dismissed outright.

However, as appellate decisions demonstrate, courts don’t always apply consistent standards when evaluating seemingly similar deficient affidavits. This inconsistency creates uncertainty for practitioners handling medical necessity cases and underscores the importance of thorough preparation and strong expert testimony.

The unpredictable nature of these rulings affects healthcare providers seeking reimbursement and highlights broader challenges in no-fault insurance litigation.

The Decision

Jason Tenenbaum’s Analysis:

Throgs Neck Multicare, P.C. v State Farm Mut. Auto. Ins. Co., 2015 NY Slip Op 51756(U)(App. Term 2d Dept. 2015)

The rebuttal affidavit was pretty poor. Yet, I would note that except for the amount of paragraphs, the rebuttal was equally as deficient as that in another recent case. In South Nassau , the Court found a triable issue of fact. Here, the Court non-suited Plaintiff. Sometimes, it really is a roll of the dice with how the Court’s will rule on particular deficient affidavits of merit.

The Legal Framework: How the Burden Shifts

The architecture of a no-fault medical necessity motion is well settled. The carrier moves for summary judgment under CPLR 3212 and makes a prima facie showing through a peer review report or independent medical examination — a sworn statement from a qualified professional setting forth a factual basis and medical rationale for concluding the services lacked medical necessity. Once that showing is made, the burden shifts to the provider.

To defeat the motion, the provider’s expert must meaningfully rebut the peer reviewer’s conclusions — that is, address the specific rationale offered, not simply re-assert that the treatment was appropriate. A rebuttal that ignores the peer review’s stated reasoning, recites the patient’s complaints, and concludes with boilerplate is the classic “deficient affidavit of merit.”

The trouble, as Throgs Neck illustrates, is that “meaningfully rebut” is a standard, not a rule. Two panels reading two similar affidavits can — and did — reach opposite conclusions about whether the threshold was met. One provider got a trial; the other got non-suited.

Why This Matters for Providers and Carriers

For medical providers, the lesson is blunt: do not write rebuttals to the minimum standard, because nobody knows where the minimum is. An affidavit drafted to squeak past one panel’s tolerance may be the same affidavit another panel finds fatally conclusory. The cost difference between a thin rebuttal and a thorough one is a few hours of the doctor’s time; the cost of guessing wrong is the entire claim.

For carriers, the same unpredictability cuts the other way. A peer review that looks dispositive on paper may survive only until a panel decides the provider’s modest rebuttal was just enough to raise a fact issue, sending a small-dollar claim to a medical necessity trial. Carriers evaluating which denials to litigate to judgment should weigh that variance into their settlement posture.

The deeper point is institutional. When outcomes on similar papers diverge, the parties cannot price cases accurately, and litigation volume grows. Predictability in how affidavits are graded would do more to settle the medical necessity docket than any substantive rule change.

Practice Pointers

• Providers: have the rebutting expert quote the peer review’s key conclusions and answer each one with reference to the treatment records. Specificity is the whole game.
• Providers: the rebutting doctor should explain why the treatment was warranted by this patient’s presentation — objective findings, failed conservative care, guideline support — rather than offering generalities about the modality.
• Carriers: do not assume a sparse rebuttal guarantees summary judgment. Brief the deficiency concretely: identify each peer review rationale the rebuttal failed to address.
• Both sides: length is not the test. As the original note observed, the Throgs Neck and South Nassau rebuttals differed mainly in paragraph count, yet produced opposite outcomes.

Frequently Asked Questions

Who has the burden of proof on medical necessity in a New York no-fault case?

The carrier bears the initial burden on its summary judgment motion: a peer review or IME report with a factual basis and medical rationale establishes a prima facie lack of medical necessity. The burden then shifts to the provider to rebut that showing with its own expert proof.

What makes a rebuttal affidavit sufficient to defeat summary judgment?

The affidavit must meaningfully address the peer reviewer’s specific rationale — explaining, with reference to the records, why the treatment was medically necessary despite the reviewer’s stated reasons. Conclusory affirmations that ignore the peer review’s reasoning are routinely rejected, though as Throgs Neck shows, the line is applied inconsistently.

Why do similar affidavits produce different results in different cases?

Because sufficiency is a qualitative judgment made panel by panel. Throgs Neck and South Nassau involved rebuttals of comparable quality, yet one plaintiff reached trial and the other was non-suited — a reminder that practitioners should draft well above the perceived minimum.

Related Resources

• Medical necessity and peer review requirements in NY no-fault
• The firm’s Legal Encyclopedia
• No-Fault insurance defense practice
• Another Medical Necessity?
• And now the Ninth and Tenth follow lockstep with the Second, Eleventh and Thirteenth
• Medical necessity not sustained