Stipulated to defeat.

All-In-One Medical Care, P.C. v. Government Employees Ins. Co., 2014 N.Y. Slip Op. 24070 (Dis. Ct. Nassau Co. 2014)

This is what happens when we all stip to everything.  Now, we end up in Court with the usual arbitration paradigm where a Plaintiff that provides contemporaneous treatment notes defeats the IME examination and testimony therein.  This is reality.

First, at trial, Court finds Dr. Emmanuel’s testimony was sufficient to estblish a prima facie showing that further services lack medical appropriateness.  Burden now shifts.

“In the face of such showing by defendant, plaintiff attempted to meet its burden through submission of post-IME medical records. “Follow-up progress notes” from Dr. Jean Claude Demetrius document monthly post-IME evaluations of Santo Fernandez that were performed between November 2010 and February 2011. In his January 11, 2011 report, for example, Dr. Demetrius notes that the patient’s pain course “has been moderately improved with current physical therapy and acupuncture” but “still has significant pain in neck and lower back with radiating pain and paresthesia to the both upper and lower extremities.” In addition, Mr. Fernandez continued to complain about shoulder pain. Upon examination of the patient’s shoulders, Dr. Demetrius found mild tenderness in the right shoulder, severe tenderness in the left shoulder, and decreased range of motion in the upper extremities.” [Commentary: This is what causes the carrier to suffer defeat in arbitration]

“Based upon these findings and other documented examination results, Dr. Dimetrius’s “diagnostic impression” included cervical and lumbar strain-sprain, cervical and lumbar discogenic disease/radiculopathy, and right/left shoulder joint pain secondary to contusion and ligament/tendon tear. His “diagnostic plan” called for “[c]ontinued physical therapy” and a follow-up re-evaluation in 4-6 weeks. Similar findings and recommendations were made in his earlier and later reports.”

At this point, the Court discusses the fact that these notes would not come into evidence absent a proper foundation, and cites to Wilson v. Boden.  The Court is correct on this score.  But unobjected to hearsay is competent evidence, and I will cite to a certain Plaintiff attorney who in the middle to later 2000s reminded me of that when I used to hang out in Civil Court.

As to a missing witness instruction, this is inappropriate since the party for whom this charge will be sougth has to be on notice before he rests his case that this will be charged to the finder of fact.  Defendant, presumably knowing Plaintiff’s witness list, did not put the Plaintiff known as soon as possible that it would seek a witness charge should Plaintiff not bring a witness to trial.  Also, if you do not ask for a missing witness charge, you do not get it.  On this record, the Court inappropriately went down a road that was never opened for traffic.

Can treatment notes at trial win the day for Plaintiff when the judge fully credited Defendant’s expert’s testimony?  Probably not.  This is identical to the line of cases where it was held that a peer report allowed into evidence is insufficient to satisfy a party’s prima facie showing of lack of medical appropriateness since medical necessity can only be discerned through live testimony.

But, I think if Defendant allowed these into evidence, then the Court (if not constrained by Appellate Term precedent that I think is wrong) had every right to consider these reports.  Furthermore, since there was no objection to the reports coming into evidence nor was an adverse inference sought, the Court but for Appellate Term precedent to the contrary was justified in its findings of fact and conclusions of law.

However, given the state of law, Defendant should have won.  Interestingly, these are the kinds of case that should be thrown into arbitration.  Typed up monthly examination notes contemporaneous to the IME, along with (I am guessing) positive nerve tests and MRI’s to corroborate the functional and structural disabilities demonstrated on the clinical examination.



The articulable need test for a provider EBT on a medical necessity case

Arnica Acupuncture P.C. v Interboro Ins. Co., 2014 NY Slip Op 50554(U)(App. Term 1st Dept. 2014)

“However, we find no abuse of discretion in the denial of defendant’s motion to compel the deposition of plaintiff’s treating provider on this record, which contains an affidavit from the provider explaining the rationale for the underlying acupuncture services, and where defendant failed to set forth an “articulable need” for the provider’s deposition ”

This case lies on the extreme end of the Ralph Medical spectrum.  Plaintiff did not comply with “interrogatories”, offer an operative report or comply with disclosure in any shape, fashion or form.  Rather, the court has held that an affidavit of merit will suffice for a deposition.  People have joked, on and off, that the CPLR does not apply to no-fault.  This case is further proof that there is truth to that maxim.

Bad faith

General Motors Acceptance Corp. v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 02384 (1st Dept 2014)

The motion court erred when it denied defendant insurer’s motion for summary judgment where plaintiffs, defendant’s insured and the excess insurer, failed to raise an issue of fact. The record does not present conduct that constitutes a “gross disregard” by defendant of plaintiffs’ interests (see Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 453-454 [1993]). We reject plaintiffs’ argument that defendant avoided acknowledging the underlying plaintiff’s potential damages such that a refusal to offer the policy limit constituted a reckless or conscious disregard of the excess insurer’s rights. While there was some indication that damages could be significant if the medical records substantiated the underlying plaintiff’s claim of a loss of smell from a severe blow to the head, the record established that defendant’s investigation presented a great deal of medical evidence tending to show that the underlying plaintiff’s injuries were primarily preexisting soft tissue injuries unrelated to the automobile accident on April 24, 1994. Defendant’s investigation included the medical opinion of four physicians that conducted independent medical examinations; one psychologist who conducted a review of the extensive medical records; experienced defense counsel; and separate monitoring counsel for the damages trial. The review of the numerous medical records, which included contradicting evaluations of the underlying plaintiff’s treating physicians, provided a justifiable basis to fairly evaluate potential damages and assess the relative risks of declining to offer a settlement of the policy limit.”

“Here, the assessment of the insured’s exposure and the failure to make a settlement offer of the policy limit was a mistake in judgment. It does not demonstrate that defendant acted in bad faith by failing to heed contrary evidence. Instead, the record shows defendant’s reasonable belief that, under the No Fault Law, the underlying plaintiff did not sustain a serious injury causally related to the accident.”

I somehow remember reading about this jury verdict.  Now, the excess carrier is upset because the primary carrier made what appears to be a boneheaded decision and got zinged with 6-7 figure liability.

This one is wrong

Huntington Med. Plaza, P.C. v Travelers Indem. Company, 2014 NY Slip Op 50527(U)(App. Term 2d Dept. 2014)

What is going on at the Appellate Term?  Is anyone researching these issues before their opine?  I just feel like this Court has been shooting from the hip lately.

“The two prior cases, involving treatments rendered from July 2008 to February 2009, went to a joint trial, at which defendant’s IME doctors testified as to their conclusions that the assignor’s injuries had resolved and that the assignor needed no further treatment. Plaintiffs put on no rebuttal witnesses in that case. After the trial, according to a decision on the record submitted by defendant in support of its motion, the court found in favor of defendant, but made no specific factual findings.”

“Based on the foregoing, defendant argued, plaintiffs were collaterally estopped from contending that the September 2009 to December 2009 treatments at issue in this case were medically necessary.”

“The decision in the prior actions was presumably based on a finding that the treatments at issue in those cases were not medically necessary. However, the court in those cases did not find that no post-IME complaints or disability could be attributable to the accident in question (compare Barnett v Ives, 265 AD2d 865 [1999]), or that the assignor’s condition could not have worsened either after the IME or after the treatments at issue therein, nor were such findings necessary to the court’s decision.”

If you read the Trial Court decision in Martin v. Geico, a case where Plaintiff sought further medical benefits following a loss in arbitration, the Court said: “After a hearing, the arbitrator affirmed the denial by Geico for no-fault benefits on the basis that plaintiff had failed to sustain her burden of proof.” (Martin v. Geico, 2005 WL 6052968 [Sup. Ct. Queens Co. 2005], affd, 31 AD3d 505 [2d Dept. 2006]).

So, if the plaintiff failed to meet its burden, it may never come back to court.  Yet, our Appellate Term sees it either otherwise.


It is not a Note of Issue

Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 2014 NY Slip Op 24091 (App. Term 2d Dept 2014)

3212(a) specifically states “note of issue”.  When will the Appellate Division right this wrong?

“It was improper for the Civil Court to consider plaintiffs’ untimely cross motion for summary judgment in the absence of a showing by plaintiffs of good cause for not serving the motion within 120 days of the filing of the notice of trial, the Civil Court equivalent of a note of issue

The statute talks about a note of issue, not the civil court equivalent.  In Supreme Court, pro-se’s have to file a Note of Issue.  This is not the case in Civil Court.  This is such a perversion of the CPLR.

Mailing from the Court of Appeals – kind of important

Preferred Mut. Ins. Co. v Donnelly, 2014 NY Slip Op 02328 (2014)

I am going to say that this is a much less restrictive test than what was set up in the 1979 decision of Nassau v. Murray.  The pertinent portion of the Fourth Department case that was affirmed is cited below.  Does your mailing affidavit hit these key points?

“The Appellate Division correctly determined that the plaintiff-insurer presented sufficient evidence of a regular office practice to ensure the proper mailing of notifications to insureds so as to raise the presumption that such a notification was mailed to and received by the insured. Specifically, the plaintiff-insurer submitted an affidavit from an employee who had personal knowledge of the practices utilized by the insurer at the time of the alleged mailing to ensure the accuracy of addresses, as well as office procedures relating to the delivery of mail to the post office. Thus, the plaintiff-insurer provided proper notice of the amendment to the policy upon renewal adding the relevant exclusion. Defendant’s remaining contentions are without merit. ”

This was what was affirmed at 111 AD3d 1242 (4th Dept. 2013):

“Specifically, the evidence established the procedure used by plaintiff for generating notices whenever an insurance policy was amended, and the documentary evidence established that a notice was generated for Donnelly’s policy during the year in which the lead exclusion was added to the policy. In addition, plaintiff submitted evidence that it placed the notices in envelopes with windows so that the address on the notice was the one used for mailing.  The envelopes were then delivered to the mail room, where they were sealed and the appropriate postage was added. Thereafter, the mail was hand delivered to the post office that was located adjacent to plaintiff’s parking lot.

While we agree with the dissent that there was no evidence submitted of a practice to ensure that the number of envelopes delivered to the mail room corresponded to the number of envelopes delivered to the post office (see Clark v Columbian Mut. Life Ins. Co., 221 AD2d 227, 228-229 [1995]Matter of Lumbermens Mut. Cas. Co. [Collins], 135 AD2d 373, 375 [1987]cf. Matter of State-Wide Ins. Co. v Simmons, 201 AD2d 655, 656 [1994]), we do not deem the absence of such evidence fatal to plaintiff’s motion in light of the detailed description of all of the other office practices geared toward ensuring the likelihood that the notices were always properly addressed and mailed

My observation is that the Court of Appeals probably required less than what the Fourth Department required.  Does your affidavit recite how and when the document is generated and that the address has an indicia of accuracy?  Does your affidavit discuss the placement of the documents into envelopes and the placement of postage?  Does your affidavit discuss the trip to the mail room and, later, the trip to the post office?


IME no show run amuck

Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 50468(U)(App. Term 2d Dept. 2014)

“A review of the record reveals that there is a question of fact as to whether defendant timely denied plaintiff’s claim after plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations. Contrary to defendant’s contention, such a defense is subject to preclusion if defendant’s denial of claim form was untimely”

I must disagree with the Court.  I think defendant’s contention was correct.  However, why fight a battle in a court where you cannot win?  Sounds senseless.

Peer review testimony is admissible and sufficient

All Borough Group Med. Supply, Inc. v Unitrin Advantage Ins. Co., 2014 NY Slip Op 50462(U)(App. Term 2d Dept. 2014)

“At a trial on the issue of medical necessity, although peer review reports are not admissible to prove the lack of medical necessity, in the case at bar, defendant properly established the lack of medical necessity at trial through the testimony of its expert witness based on his independent review of plaintiff’s assignor’s medical records.”

So an independent review of the medical records that is consistent with the medical rationale in the peer review will win the day for the carrier.  This holds true for a sub-peer review.  Perhaps, I can convince a Kings County Civil Court judge that this is the law…

The 60-day rule that was never published in the law journal

Tong Li v Citiwide Auto Leasing, Inc., 2014 NY Slip Op 50481(U)(App. Term 2d Dept. 2014)

“It is undisputed that, under the rules of Part 41 of the Civil Court, motions for summary judgment are to be filed within 60 days of the filing of the notice of trial. It is also undisputed that defendant filed its motion in Part 41 more than 60 days after the notice of trial had been filed.”

Why does this Court apply 3212(a) to Civil Court matters?  It deals with Notes of Issue, not the notice of trial.  CPLR 3404 deals with Supreme Court and Count Court actions and the Second Department held that the statute does not apply to Civil Court practice as noted in Chavez.  Yet, the Appellate Term clearly noted prior to Chavez that the uniform court rules apply to CPLR 3404.  Also, absent a provision in a compliance conference order or preliminary conference order which limits the time to make a dispositive motion, who has the right to limit the 120 day period in a court where a Notice of Trial can be filed at any time?   Also, this rule is not in the law journal or on a website. It is a poor holding.  This is another case where the Second Department should really look at this issue.

IME no-show – Court refused to follow Appellate Division standards

Great Health Care Chiropractic, P.C. v Citiwide Auto Leasing,  2014 NY Slip Op 50476(U)(App. Term 2d Dept. 2014)

I am guessing nobody realized that the burden is on the medical provider to demonstrate that the attorney that the letter was mailed to did not represent the EIP.  American Transit v. Leon.  As to Lincoln Avenue v. Lincoln Place, the Courts have held that if the letter is mailed to a building sans apartment number or suite number, then there is sufficient proof of mailing.  It would seem to follow that an error with “avenue” and “place” should not vitiate a proper mailing.  The Appellate Division and Appellate Term, First Department have held that.  The question here is whether Respondent’s brief hit on any of these points.  If they did not (or at least argue it before the panel), then shame on the attorney.

I would seek leave to go to the Second Department on this one.

(1) “With respect to the address to which the IME scheduling letters were mailed, defendant’s cross-moving papers show that the letters were sent to plaintiff’s assignor at “285 Lincoln Avenue” while the NF-3 form plaintiff submitted to defendant states that plaintiff resides at “285 Lincoln Place.” Wrong on the law.

(2) “To the extent that copies of the IME scheduling letters were sent to an attorney, there is nothing in the record to suggest that plaintiff’s assignor was represented by that attorney. Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled”  Wrong on the law.

(3) “[a]nnexed to defendant’s cross-moving papers were copies of defendant’s denial of claim forms, which denied plaintiff’s claims on multiple grounds. As a result, plaintiff did not meet its prima facie burden”

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