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Archive for the ‘Evidence’ Category

Total Family Chiropractic v Mercury Cas. Co., 2010 NY Slip Op 51470(U)(App. Term 2d Dept. 2010)

This was another one that did not necessarily go my way.  By way of explanation, this was a complicated case, where the defense was whether plaintiff assignors made or conspired to make material misrepresentations in the procurement of the insurance policy.

The bills were delayed pending EUO’s of the assignors.  The assignors were coy about admitting that Karoy Brown resided with his soon to be bride, Crystal Franklin Brown.  There were four vehicles that were registered and owned by Crystal Franklin.  Evidence was adduced that a trailer was parked in front of the Franklin residence, which contained lawn mowers and other equipment.  Karoy alleged that he commuted from New Jersey to Patchogue to perform landscaping for a man whose name and number he could not remember.  He worked between 3-5 days per week, for 12 hours per day.  He would always go back home to New Jersey at the end of the day.  Both assignors denied using the vehicles for any commercial purposes.  Karoy had a suspended driver’s license during the relevant time period.  Also, Karoy made a pass at the court reporter after the EUO.  Thank goodness Crystal did not see that.

Evidence was also adduced that Crystal kept logs of  the jobs that were performed.  Both Assignors had cellphones.  Crystal had a lease for her place, and had a landlord.  Other material information was in existence.

The bills were delayed following the EUO in order to obtain this information.  Once obtained, a further investigation would be done, which would shed more light on this case.

Nobody ever complied with the verification requests.

Had the supplied information demonstrated that the vehicles were used for commercial purposes or that Karoy was a resident and used the vehicle, then the claims would have most likely been denied due to the making of material misrepresentations in the procurment of the insurance policy.

Dueling motions for summary judgment were made following commencement of this action.  A spreadsheet was used to log all of the pertinent dates for each bill.  This case was pre-LMK so there were tons of bills for $33.70 and $67.40 flying around out there.

The Court said the following: “In an attempt to establish that the time period in which it had to pay or deny the claims was tolled due to outstanding verification requests, defendant relied upon spreadsheets annexed to the affidavit of its claim representative. However, because the claim representative did not establish that the spreadsheets constituted evidence in admissible form (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569, 579-580 [1986]; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331 [2009]; Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531 [1997]), defendant has not shown that it made timely verification requests.”

The information annexed to the spreadsheets were the dates the bills were received, verifications sent, etc.  All of this information was annexed to the motion itself.  In fact, the motion was about 1000 pages.  The spreadsheet was more or less illustrative.  I mean, I usually put a chart in my motion and put the information in the said chart.  Since there was so much information for each bill, I used a spreadsheet instead of one of my charts in this case.

The affidavit of the claims representative had the standard language that this court previously found to be sufficient to allow the entry of all of the documents into evidence.  The information in the spreadsheet was incorporated by reference.  The case the court cites, Pallisades Collection, involved an assigned credit card debt that Pallisades purchased from Discover.  Pallisades had to establish a business record foundation involving Discover’s business practices, in order to allow the entry of Discover’s data into evidence.

Here, the information was always stored and processed by Mercury.  The affidavit, after laying a foundation for the dates and form of the documents,  said that the spreadhseets annexed to the affidavit memorialized the information pertinent to the claim.  I have to disagree with the court on this one.

Anyway, the moral of the story is this.  If you have information that requires a spreadsheet, make sure you somehow incorporate the actual spreadsheet as part of the affidavit.

E.g.

“3. The following represents the claims handling in this matter:

[INSERT SPREADSHEET]

4. blah blah.

5. Facsimiles shall be deemed originals.”

On the bright side, the notice of trial was stricken so that Mercury can now search this state to find the Brown family and invite them to come in for an EBT.

This was a comment from Jerry Maline, of Richard Lau’s office, State Farm’s in-house counsel.  This is a really astute comment, and got me thinking for a second.  Now, just follow me on this to see if my logic makes sense.

According to the Appellate Term, Second Department, Notices to Admit and Interrogatories cannot be used to establish a prima facie case.  This is because a party cannot admit the genuineness of another party’s documents, as well as use these devices to establish a complete prima facie case.  In practice, this translates to disallowing an insurance carrier to lay a business record foundation for a provider’s bills or an injured person’s bills.

The corollary to this rule is that a medical provider cannot lay a business record foundation for an insurance carrier’s denials.

In contrast to the above, we now have learned that at the Appellate Term, First Department, interrogatories and notices to admit may be used to satisfy a prima facie case, since the genuineness of the bills is not part of a provider’s prima facie case.

Now, in light of the Second Department’s  holding in Urban, viz, that a denial does not have to be “in evidence” in order to preserve the defense set forth on the denial, the only factual issue a denial presents is its timeliness.  We all know that denials, generally, are mailed on the date set forth on the denial or the next business day.  There are some variations out there, but that is the general industry standard.  In light of Central Nassau, it would seem that a provider could be charged with having sufficient knowledge to either admit or deny: 1) whether; and/or 2) when the provider received a denial.  Like anything else, this tactic will only work if the statements set forth on the Notice to Admit are properly drafted.

Since the only issue relating to an NF-10 at the Appellate Term, Second Department, involves the timeliness of the denial, it would seem to follow that a Notice to Admit can satisfy the underlying procedural issues, and allow the insurance carrier to go forward on its substantive defense.  Moreover, since an insurance carrier’s entire prima facie defense does not rest on the timeliness of a denial, it cannot be said that the Notice to Admit would go to the ultimate or heart of the disputed issue.  So, an insurance carrier can successfully use this device to demonstrate timely handling, in my opinion.

As for the Appellate Term, First Department, this is an open question.  Notwithstanding that Court’s holding that a Notice to Admit may itself satisfy a provider’s prima facie case, that court has never opined as to whether a denial must be in evidence, in order to preserve the defenses that are set forth on it.  I would imagine that the Appellate Term, First Department, would probably follow the Presbyterian v. Elrac rule and require that the denial be placed into evidence, before allowing a carrier to go forward on its substantive defenses.

In any event, the Appellate Term, First Department, at worst would only leave unresolved for trial the business record foundation issue involving the denial, besides the substantive defenses.  Admittedly, laying a business record foundation is a far easier burden than showing a document was timely mailed.

Thus, a properly drafted notice to admit should resolve the timeliness issue.  In the Second Department, this would resolve all issues involving the denial of claim form and allow the carrier to go forward on its substantive defense.  In the First Department, this would at a bare minimum eliminate the mailing issue, and possibly leave the business record issue open, as well as the underlying defense to the no-fault claim.

Okay, I am back to my posts regarding what should be necessary to defeat a medical necessity summary judgment motion.  This is from a lead paint case.

Smith v New York City Hous. Auth., 2010 NY Slip Op 05484 (1st Dept. 2010)

“Plaintiffs’ submission of the affidavit of an expert in the field of environmental geochemistry, was insufficient to raise a triable issue of fact as to causation. The expert’s opinion that airborne lead dust caused the infant’s high blood lead level 14 months after the first period of residency was speculative and “devoid of analysis or reference to scientific data” (Abalola v Flower Hosp., 44 AD3d 522, 522 [2007]).

Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 50990(U)(App. Term 2d Dept. 2010)

“Plaintiff argues, among other things, that defendant’s motion should have been denied because defendant failed to establish that its denial of claim forms constituted evidence in admissible form pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518. This argument is unavailing. Defendant did not offer the denial of claim forms to establish the truth of the matters asserted therein, such as the lack of medical necessity of the services rendered, but rather to show that such denials were sent, and that, therefore, the claims were denied. As the denial of claim forms were not offered for a hearsay purpose, they did not need to qualify as business records (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]).

Plaintiff raises the same argument regarding the notice of cancellation offered by defendant with respect to the insurance policy issued to Manuel Espinal which defendant had canceled. Again, since this document was not being offered for a hearsay purpose, it did not need to qualify as a business record. As plaintiff’s remaining contentions are meritless, the order is affirmed.”

In St. Vincent Medical, P.C. v. Mercury (App. Term 2d Dept. 2009) and NY&P v. Elrac Inc.(2d Dept. 2004), it was held that the denials constituted business records despite the objections of the respective plaintiffs.  Also, Dan Medical holds that a bill has to be placed into evidence to satisfy a provider’s prima facie case.  So, I am confused by this one.

CORRECTION – See,  St. Vincent Medical Care, P.C. v. Mercury Cas. Co. 23 Misc.3d 135(A)(App. Term 2d Dept. 2009)(”The affidavit of defendant’s claim representative set forth the affiant’s personal knowledge of defendant’s business practices and procedures, so as to lay a foundation for the admission of the documents annexed to the affidavit as business records (see CPLR 4518; Dan Med., P.C. v New York Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2007]“).

The second case I cited above should be:  Hospital for Joint Diseases v. Elrac, Inc. 11 A.D.3d 43 (2d Dept. 2004)(”We expressly reject the argument of NY & P Hospital that the affidavit of a claims representative based on records maintained by an insurer in the ordinary course of business did not constitute admissible evidence sufficient to establish a valid defense (see DeLeon v Port Auth. of N.Y. & N.J., 306 AD2d 146 [2003]; First Interstate Credit Alliance v Sokol, 179 AD2d 583, 584 [1992]). Personal knowledge of such documents, their history, or specific content are not necessarily required of a document custodian (see DeLeon v Port Auth. of N.Y. & N.J., supra”)

There is another case: Montefiore Medical Center v. Liberty Mut. Ins. Co. 31 A.D.3d 724 (2d Dept. 2006)(”Contrary to the contention of the plaintiff Montefiore Medical Center, the affidavit of the defendant’s claims representative based on records maintained by the insurer in the ordinary course of business was sufficient to establish the defense (see Hospital for Joint Diseases v. ELRAC, 11 A.D.3d 432, 433, 783 N.Y.S.2d 612). Similarly, the documents submitted on the cross motion demonstrate that the insurer effectively canceled the policy (see Hughson v. National Grange Mut. Ins. Co., 110 A.D.2d 1072, 488 N.Y.S.2d 930″).

Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 2010 NY Slip Op 50987(U)(App. Term 2d Dept. 2010)

This case really should be in the misc.3d reporter and Habif, the last case we discussed, should have the aforesaid (U) cite.  The predominant issue that is presented in this case involves peer hearsay.  But, there is a subtle jab at how certain Kings County judges adjudicate the mailing issue; a mention of 3212(g) and a way to possibly invoke it; and the duty to communicate when an additional verification request is received.  Now on to the discussion of this case.

1. Peer hearsay – exception to the hearsay rule

The case starts off with the observation that the plaintiff assignor’s medical records are fair game under the standard argument that a medical provider is estopped from challenging medical records that reference or discuss the assignor.  This rule follows the long line of cases, which holds that the plaintiff’s medical records constitute admissions when used by the defendant.  The court was correct in invoking this rule, and should have stopped here in its analysis.

2. Peer hearsay – it is non hearsay

“Moreover, we note that, while defendant’s peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in Rafailova’s records were true, the treatment allegedly provided was not medically necessary. Therefore, as defendant was not using the underlying medical records for their truth, such records were not being used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff’s argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided was not medically necessary is irrelevant.”

I am not sure that I agree with theabove reasoning.  If a patient’s medical chart shows normal Range of Motion and symmetrical Deep Tendon Reflexes, then of course I as a competent defense attorney am going to use these findings for their truth, to show that certain diagnostic testing was medically unreasonable.  This also runs counter to the Ninth and Tenth Districts’ determination in Progressive Medical Inc. v. Allstate.  Finally, it runs counter to the Second, Eleventh and Thirteenth Districts’ determination in Pan Chiro, P.C. v. Mercury Ins. Co.

But, the real problem with this case is the application it has to personal injury and medical malpractice litigation.  I will let your imagination craft the creative lawyering this case presents.

3. Mailing

The rule in Civil Kings with certain judges is that the affidavit must be specific as to the dates an item is mailed.  It is insufficient, according to these judges, to present an affidavit that discusses the general mailing procedure, which will allow a reader to infer that an annexed denial was mailed on the date of the denial or the next business date.  The fact that certain plaintiff’s prevailed using this argument forever baffled my mind, and was always a key determination as to whether or not I appealed an adverse decision.  Here is an example of case from Kings County where I reversed a judge who said my affidavit was not specific enough: Quality Psychological Services, P.C. v. Mercury Ins. Group, 27 Misc.3d 129(A)(App. Term 2d Dept. 2010).  Here is an example from Queens County where I reversed a judge who said my affidavit was not specific enough : Innovative Chiropractic, P.C. v. Mercury Ins. Co., 25 Misc.3d 137(A)(App. Term 2d Dept. 2010).

Here is the language from Urban:

“The Civil Court denied the motion due to the lack of specificity in the affidavit of defendant’s mail clerk regarding mailing of the denial & requests for additional verification.  The instant appeal by defendant ensued. Contrary to the determination of the Civil Court, the affidavits of defendant’s no-fault claims examiner and mail clerk were sufficient to establish that defendant had timely mailed the additional verification requests and NF-10 denial of claim forms in that they described, in detail, based on the affiants’ personal knowledge, defendant’s standard office practice and procedure designed to ensure that said documents were mailed”

4. Communicate or be estopped

A reoccurring theme in the case law has involved the insurance carrier sending a verification request  to a provider who the insurance carrier knows, or should know, does not have the requested information.  A similar theme involves the sending of verification requests to a provider when they have an attorney submitting their bills.

The Court, in following recent precedent, held that the provider must communicate that it does not have the information in order to stop the tolling of the time to pay or deny the claim.  The Urban court said the following: “While plaintiff argues that the requests should have been sent to the referring physician, inaction was, in this case, not a proper response (see Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]). Plaintiff should have informed defendant that the requests should be sent elsewhere.”

5. The door opens up to the invocation of 3212(f)

“Furthermore, plaintiff did not demonstrate that it needed the records from the other providers in order to raise a triable issue of fact as to whether the services at issue were medically necessary when they were rendered (see CPLR 3212 [f]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and that it had served discovery demands during the ample opportunity that it had to commence discovery proceedings to obtain such records before the instant summary judgment motion was brought (see Meath v Mishrick, 68 NY2d 992 [1986]).

It looks like the Defendant failed to annex the medical records that its peer review doctor relied upon in its motion for summary judgment.  Interestingly, the court held that if Plaintiff was diligent in seeking discovery, it would have been able to invoke 3212(f).  This is very interesting and it also makes sense.

All that in one case.

Beal-Medea Prods., Inc. v GEICO Gen. Ins. Co., 2010 NY Slip Op 50800(U)(Civ. Ct. Kings Co. 2010)

This is the topic that just will not go away.  Except for one case that I will discuss later, the Appellate Term has consistently held that a peer doctor may predicate his testimony from an Assignor’s out-of-court medical records.  Although never explicitly stated, the courts have held that there is an inference that medical records containing some biographical information about the assignor are reliable. This is why the Appellate Term has rebuked every hearsay challenge that has been presented on a properly developed record.

Yet, each time the Appellate Term holds that the purported hearsay challenges lack merit, another civil court purports to find a “distinction” in order to sustain a hearsay challenge.  Most of these distinctions are without a difference, and where the distinction occurs in this case is beyond me; but the Civil court here found that the peer doctor’s testimony should be stricken because it violated Wagman.  The Court, without going into detail, continuously cited Progressive Med., Inc. v Allstate Ins. Co., 26 Misc 3d 138(A)(App. Term 2d Dept. 2010), for its justification in striking the testimony of the peer doctor.

In case you forgot, Progressive Med stated the following:

“On the other hand, on the scant record provided to this court, there is no basis to disturb the court’s decision to strike defendant’s witness’s testimony. Plaintiff advanced what was, in effect, a hearsay objection. Defendant failed to demonstrate either that the testimony did not rely on out-of-court documents for the truth of the matters stated therein, or that the documents were being relied upon for their truth but fell within an exception to the rule against hearsay. Consequently, we cannot say that it was an improvident exercise of discretion for the court to strike the testimony.”

Even one of the most respected practitioners from the no-fault plaintiff’s bar, along with the respected no-fault blogger from the same law firm, observed the following about Progressive Med., Inc. v Allstate Ins. Co., in an April 8, 2010 New York Law Journal article entitled APPELLATE COURTS ADDRESS ISSUES OF PROCEDURE AND FOUNDATION 4/8/2010 NYLJ 3, (col. 1): “Practitioners should note, however, that the court took pains to point out the sparse record.”

As I have said numerous times, medical records containing some biographical information about the assignor will raise an inference that the said medical records are reliable.  This is never to say -and I have said this before – that a Plaintiff can offer evidence to rebut this inference.  Think of res ipsa loquitor.  It is is a similar concept here.

But, to jump up and down, yell hearsay and actually obtain a decision like this should and probably will lead to an appeal, whose result is preordained.

Speciality Surgical Servs. v Travelers Ins. Co., 2010 NY Slip Op 50715(U)(App. Term 2d Dept. 2010)

“At trial, defendant’s doctor testified that the services provided were not medically necessary, and defendant also admitted into evidence a copy of the doctor’s affirmed peer review report, which was to the same effect. Both the doctor’s testimony and his report set forth a factual basis and medical rationale for his conclusion that the services rendered were not medical necessary. This evidence was not rebutted by plaintiff. In view of the foregoing, we disagree [*2]with the District Court’s finding that defendant failed to establish that the services provided were not medically necessary. Accordingly, the judgment is reversed and judgment is directed to be entered in favor of defendant dismissing the complaint.”

There was also a discussion regarding the validity of an assignment of benefits, but this issue was foreclosed due to the failure to address it during the claims stage.

I am more intrigued by the summary reversal of the District Court’s decision, after trial, that the services lacked medical necessity.  Of course, we have no idea whether the reversal was on the law (CPLR 4404[a]), in the exercise of the appellate court’s broad discretion, or based upon the appellate court’s opinion that the trial court’s decision was against the weight of the evidence.  Also, it is interesting how the court made mention of a peer report which, in effect, bolstered the peer doctor’s testimony.

I would hope, for the plaintiff’s bar, that the District Court sat solely as a proverbial “13th juror”, which would render the reversal as based upon the decision being against the weight of the evidence.  If this decision was based on the law, then it would appear that as long as the testimony is not conclusory and supported by admissible evidence, a trial court is bound to find for the defendant absent rebuttal testimony.

I would like to see the appellate courts evaluate more of these unrebutted medical necessity trial cases, before I come to any conclusions.

“Furthermore, the computerized range-of-motion tests referred to in Dr. Dudelzak’s affirmations were not in admissible form because they were not affirmed by someone with personal knowledge of the facts (see Taylor v Flaherty, 65 AD3d 1328; see also Luna v Mann, 58 AD3d 699, 700; Washington v Mendoza, 57 AD3d 972). Without admissible evidence of quantified range-of-motion limitations contemporaneous with the accident, the plaintiffs could not have established the duration of the injuries required to raise a triable issue of fact as to whether they sustained a serious injury under the permanent consequential limitation or significant limitation of use categories of the no-fault law (see Kuchero v Tabachnikov, 54 AD3d at 730; Ferraro v Ridge Car Serv., 49 AD3d 498).”

The computerized range of motion testing is medically necessary because it is instrumental in meeting the serious injury threshold of the Insurance Law.  It was not admissible, however, because it was not properly affirmed.

Rivera v GT Acquisition 1 Corp., 2010 NY Slip Op 03158 (1st Dept. 2010)

“The motion court properly disregarded the uncertified police report and unauthenticated photographs as they constituted inadmissible hearsay”

In all fairness to Plaintiff, the courts have really been all over the place with the necessity of a police report to be certified.  On some days, they say it is admissible in accordance with CPLR 4518(a) because a foundation may be imputed based upon the duties of the police officer.  Other days, the courts have held that the police report contains admissions, which are admissible against the declarant.  Now today, they have held that an uncertified police report is inadmissible.

Go figure.

Matter of Fortunato v Murray, 2010 NY Slip Op 03122 (2d Dept. 2010)

“Contrary to the Family Court’s general statement of the applicable law, “[a] physician’s office records, supported by the statutory foundations set forth in CPLR 4518(a), are admissible in evidence as business records. However, medical reports, as opposed to day-to-day business entries of a treating physician, are not admissible as business records where they contain the doctor’s opinion or expert proof” (Matter of Bronstein-Becher v Becher, 25 AD3d 796, 797 [internal quotation marks and citations omitted]; see Batts v Rutrick, 298 AD2d 417; Napolitano v Branks, 141 AD2d 705, 705-706). Moreover, a physician’s office records “may be received as evidence despite the fact that a physician is available to testify as to the substance and contents of the records” (Napolitano v Branks, 141 AD2d at 705-706; see Clarke v New York City Tr. Auth., 174 AD2d 268). Here, upon the father’s appeal of the Family Court’s order, this Court does not have the benefit of the actual medical documents in dispute since the documents are not part of the original papers before this Court. Thus, from the record, it is unclear whether the subject documents were the type which this Court views as admissible. Accordingly, we remit the matter to the Family Court, Nassau County, for a review by the Support Magistrate of the subject medical documents in light of and pursuant to the aforementioned standard as to admissibility.”

This case tells us a few things about business records and medical opinions.  First, day to records, i.e., soap notes, treatment logs, and other day to day documentationare admissible as business records.  As we also learned in Faust v. McPherson, 4 Misc.3d 89 (App. Term 2d Dept. 2004), an employee of the physician or the medical facility can lay this foundation.  Second, medical reports are admissible as business records except for the portion that contains “the doctor’s opinion or expert proof”.

Keep this in the back of your head when you are a plaintiff in an IME cut-off case and you want to have an expert opine on the medical records subsequent to the IME cut off.  As a defendant, keep your eyes open for when you see certain violations of the above-stated rule.