No Fault Defender – A Defense Attorney's Perspective on New York No-Fault Law

Archive for the ‘Sufficiency of medical evidence’ Category

Travis v Batchi, 2010 NY Slip Op 05862 (1st Dept. 2010)

“The examination records of plaintiff’s own treating physician/expert show that she had full strength and range of motion in the knee both a few weeks and a few months after the accident, after he performed a right knee ACL reconstruction, partial medial and lateral meniscectomy and chrondroplasty.”  “[t]he negative findings cannot be reconciled with the physician’s affirmation submitted in opposition to the motion prepared a few years after the accident.”

I found this case last week but forgot to report it.  I have this fascination with surgery cases not beating threshold.  Just look at the surgery that was done in this case.  This was significantly more than the arthroscopic procedure we always see in our practice.  Had this gone to trial, you could imagine a $500,000 + non-economic damages verdict.

My first observation, and this is a reoccurring theme here, is that gratuitous “affidavits of merit” are without any probative value if controverted by the medical record before the motion court.  This is an important point, and one I am trying to push up the appellate ladder in the no-fault context.  The saying goes: “it is what it is”.  If the assignor’s medical chart fails to discern ROM restrictions, etc., then why should an affidavit that contradicts the medical record raise an issue of fact?

My second observation, and one that the defense bar should be astute to is more pragmatic.  Is sacrificing threshold and allowing a Bronx jury to adjudicate a case like this worth the savings the carriers might obtain through the proposed no-fault reform bills that are out there?  I think the saying goes: pick your poison.

As a public service message, make sure you stay hydrated if you are going outside and exerting any physical activity.

By the way, the court got this once right on the mark, and the defense did a wonderful job in defeating this potential disaster.

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]).

“Dr. Thompson also failed to reconcile his findings of limitation in the plaintiff’s left shoulder in May 2009, as set forth in his affirmation, with the report of the injured plaintiff’s other treating physician, Dr. Gary Fink, who found no limitations in the injured plaintiff’s left shoulder less than one month post-accident (see Raleigh v Ram, 60 AD3d 747).”

Again, how come the Appellate Term is not applying this body of law to no-fault?  If an IME shows normal range of motion and plaintiff’s own medical evidence shows normal range of motion prior to the IME, then the plaintiff  who attempts to show deficiencies in assignor’s range of motion post IME shoud be unable to raise an issue of fact.  Simple.

Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 2010 NY Slip Op 50829(U)(App. Term 2d Dept. 2010)

“Appeal from an amended order of the District Court of Nassau County, First District (Andrew M. Engel, J.), dated July 17, 2008.”

“In support of its motion, plaintiff submitted defendant’s affirmed peer review reports and argued that plaintiff was entitled to summary judgment because the peer review reports did not adequately set forth a medical justification to support the peer review doctor’s conclusions that the services at issue were not medically necessary. In opposition to plaintiff’s motion, defendant established that its denial of claim forms, which relied upon the peer review reports, were timely (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Contrary to the conclusion of the District Court, we find that the peer review reports set forth a sufficient factual basis and medical rationale to demonstrate the existence of an issue of fact as to medical necessity (see B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]; see also A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51016[U] [App Term, 9th & 10th Jud Dists 2009]). Accordingly, plaintiff’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).”

It is nice to see Judge Engel’s treatise on State Farm’s mailing fall one case at a time.  I will admit that I am biased, since I was on the losing end of Acupuncture Prima Care, P.C. v. State Farm, 17 Misc.3d 1175 (App. Term 2d Dept. 2007).  Other than that and an unsuccessful challenge to the sufficiency of the peer review, this case does not add anything to our jurisprudence.

Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 2010 NY Slip Op 50700(U)(App. Term 2d Dept. 2010)

“Contrary to plaintiff’s contentions, once defendant submitted an affirmed peer review report that set forth a factual basis and medical rationale for its peer reviewer’s opinion that the medical equipment provided was not medically necessary, defendant established, prima facie, a lack of medical necessity for the equipment in question, shifting the burden to plaintiff to rebut defendant’s showing (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 [*2]NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).”

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.

My medical necessity summary judgment crusade continues.

Gz Med. & Diagnostic, P.C. v Mercury Ins. Co., 2010 NY Slip Op 50491(U)(App. Term 2d Dept. 2010)

We have seen this before:  “In opposition to the motion, plaintiff failed to raise a triable issue of fact. Contrary to the finding of the Civil Court, the affirmation of plaintiff’s doctor did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (id.; see also Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).”

Besides this case and those like it, I would say that the plaintiffs are getting better at defeating these types of motions.  This only makes sense.  I mean, in a similar vain, would it make sense after 3-4 years of losing cases based upon the “mailing” issue, for carriers not to figure out how to craft procedures and draft affidavits that would raise the inference that an item was mailed?

As I have also said before, however, the Appellate Term recently gave two free passes, on medical necessity summary judgment motion, to firms that should be eternally grateful that the contents of their papers were not exposed.

This is a case that came out, upon which I prevailed.  I want you to compare the plaintiff’s affidavit in this case with that found in Infinity and Coop City – see here.

High Quality Med., P.C. v Mercury Ins. Co., 2010 NY Slip Op 50447(U)(App. Term 2d Dept. 2010)

“In opposition to defendant’s cross motion, plaintiff failed to raise a triable issue of fact. Contrary to the finding of the Civil Court, the affirmation of plaintiff’s doctor did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App [*2]Term, 2d, 11th & 13th Jud Dists 2009]; see also Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the branch of defendant’s cross motion which sought summary judgment dismissing the second cause of action should have been granted (id.; see also A. Khodadadi Radiology, P.C. v NY Cent. Mut Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).”

Here was the pertinent part of plaintiff’s unsatisfactory affidavit, which I am pulling from my Appellate brief:

1. “1. The Affirmation of Dr. REDACTED

Respondent offered an affirmation from a physician named REDACTED.  The affirmation states the following:

I have reread the medical records attached hereto that I have prepared in conjunction with the treatment rendered to Robel Thomy for his accident, suffered on November 26, 2006.  I swear that my conclusions and findings, fully incorporated by reference, are true and accurate.  I have also read the report from the peer review performed by REDACTED on March 30, 2007.  Further, after review of the above documents, I reaffirm my opinion that the medical services that were provided on March 7 were medically necessary”

In my opinion, this affidavit was better than that found in Infinity and Coop City.  It was internally consistent and really said the same thing, less the verbiage, as that found in Infinity and Coop City.

I tend to think that the more medical practice summary judgment motion cases you read, the more you see the interplay between no-fault and medical malpractice matters, at least procedurally on motion papers.  Here is another one from the First Department

Cupelli v Lawrence Hosp., 2010 NY Slip Op 02000 (1st Dept. 2010)

“The only reference in plaintiff’s expert’s affirmation to Dr. Provenzano states that “[a] note appears in the [hospital] records that [the ER physician] discussed the case with Dr. Provenzano.” As such affirmation simply does not address the medical evidence and opinion contained in Dr. Provenzano’s expert’s affirmation the prima facie sufficiency of which is clear and indeed not challenged by plaintiff on appeal, no issues of fact are raised as to Dr. Provenzano’s malpractice.”

You can translate “medical evidence” (malpractice speak) to “factual basis” (no-fault speak), and opinion (malpractice speak) to “medical rationale” (no-fault speak).

By the way, note that the Appellate Division held that the doctor has to address the medical evidence and the opinion based upon the medical evidence.  Plaintiff did not do this in Infinity Health Prods., Ltd. v Mercury Ins. Co., 2010 NY Slip Op 50385(U)(App. Term 2d Dept. 2010).  My discussion of that case is here.

Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 2010 NY Slip Op 50380(U)(App. Term 2d Dept. 2010)

“In support of its motion for summary judgment, defendant submitted an affidavit executed by the chiropractor/acupuncturist who had performed an independent medical examination (IME), as well as an affirmed IME report, establishing, prima facie, a lack of medical necessity for the services at issue. In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact. Contrary to the finding of the Civil Court, the affirmation of plaintiff’s “supervising acupuncturist” did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, so much of defendant’s motion as sought dismissal of the claims at issue should have been granted (id.; see also A. [*2]Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).”