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

Archive for June, 2010

I think the blog post of Respondent’s counsel in Central Nassau, Kurt Lundgren, shows the practical side of Central Nassau and the business side of our industry.  You should definitely read it.

It is nice to know that the top bloggers of the no-fault bar have been nominated for LexisNexis’s Top 50 Insurance blogs, as Dave reports to us today.  I agree that Dave should get a pullitzer prize for his on location photos.

There should be an award for the top commentators on our blogs.  I would nominate Sun Tzu and Zuppa – as long as Zuppa is not insulting me on here.

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]).

I think i fixed the bugs.  Please let me know if you can download on explorer.

I have finally relented and am posting the relevant documents I downloaded from Pacer.

Geico v. Vista Medical Diagnostic

Rico Pattern Act

Central Nassau Diagnostic Imaging, P.C. v GEICO, 2010 NY Slip Op 20244 (App.Term 1st Dept. 2010)

I am going to annotate this opinion -

Here is the synopsis of the argument:

“On appeal, defendant argues that plaintiff could not rely upon defendant’s admissions resulting from its failure to respond to the notice to admit to establish plaintiff’s prima facie case. Defendant maintains that, notwithstanding the factual admissions resulting from its failure to respond to the notice to admit, plaintiff was required to call witnesses at trial to lay a foundation for the admission into evidence of the bills. Because plaintiff did not call any trial witnesses, defendant asserts that the complaint should have been dismissed, as plaintiff failed to establish entitlement to recover the assigned no-fault benefits. We disagree, and affirm.”

Here is the holding:

“[p]laintiff’s requests for admissions were appropriate and defendant, by failing to respond to the notice to admit or seek other appropriate relief, is deemed to have admitted the facts on which plaintiff sought admissions. Because defendant admitted that the two bills attached to the notice were “true and accurate” copies of the bills received by defendant and that defendant has not paid those bills, plaintiff established its entitlement to recover the overdue assigned first-party no-fault benefits (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).”

The final nail in the coffin from this court:

“Our conclusion that a plaintiff-provider can use admissions obtained through a notice to admit to establish its entitlement to recover overdue assigned first-party no-fault benefits is consonant with the purposes underlying the No-Fault Law, which “were to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists” (Medical Socy. of State v Serio, 100 NY2d 854, 860 [2003]), as well as case law [*3]allowing a plaintiff-provider to establish its entitlement to such benefits based on admissions obtained from a defendant-insurer on interrogatories (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [2007]).”

The Appellate Term, Second Department gets slighted:

“To the extent Bajaj v Gen. Assur. (18 Misc 3d 25 [2007]) can be read to support a contrary result, we decline to follow it.”

My thoughts:

Why would a plaintiff stipulate to anything if an unanswered notice to admit or Interrogatory #18 of a famous law firm’s discovery package is completely answered?

Admittedly, I suppose this decision makes sense and is correct on the law as Appellate Division authority exists right now.  As a practitioner, it just seems crazy that a provider can mail a piece of paper – it probably can even be a boulder that Fred Flintstone chizzled into – wave a wand and make its case through the statutorily mandated duties of an insurance carrier.  Blame the Appellate Division for this result.

But, I have to laugh at how allowing a medical provider to meet its prima facie case without calling a witness or relying on an insurance carrier’s admissions: “[r]educe[s] the burden on the courts and to provide substantial premium savings to New York motorists”.  It looks like the author of this per curiam opinion decided to hurl some of the left over salt from the stockpiles that New York City has at the conclusion of the winter season at Geico’s counsel’s open wounds.

ONE MORE THING

I was informed last night that I was actually referencing “interrogatory #8″, see supra.  I said “18″.  And yes, I have received many motions over the years explaining how my response to this famous interrogatory was deficient.

Alur Med. Supply, Inc. v GEICO Ins. Co.,2010 NY Slip Op 51053(U)(App. Term 2d Dept. 2010)

“In the instant case, plaintiff’s motion for summary judgment was supported by the affidavit of plaintiff’s billing manager as well as an annexed certificate of mailing, referred to in the affidavit, which indicated that the subject claim form was mailed to a different insurer. In light of the discrepancies between the affidavit and the annexed certificate of mailing, plaintiff did not establish submission of the claim to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; see also AKS Med., P.C. v Progressive Ins. Co., 24 Misc 3d 135[A], 2009 NY Slip Op 51494[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment, and its motion should have been denied.”

Assuming that you agree that Plaintiff’s proofs were insufficient to prove the mailing of the bills, then this was the correct disposition.  The failure to establish a movant’s prima racie entitlement to summary judgment requires the denial of the motion regardless of the sufficiency of the answering papers.  This is the standard in all areas of law except no-fault.  The law in no-fault practice in the Appellate Term, Second Department – which is incorrect – is that the a defendant’s admission of receipt of a claim form in its answering papers can “cure” the deficiencies of the plaintiff’s moving papers.  Oleg Barshay, DC, P.C. v. State Farm Ins. Co., 14 Misc.3d 74 (App.Term 2d Dept. 2006).

Who knows if Alur Medical is a quirk or if it represents the new and proper view of the Appellate Term, Second Department?

As to the merits of the attempt to establish a “prima facie” case, to wit, whether plaintiff’s proofs were sufficient, on its face to establish the bill was mailed, the question really should be whether the discrepancy in plaintiff’s proofs was minstrel or manifest.  Too many times, the courts in this area of law punish both sides for leaving out a word, phrase, or misspelling something when the issue involves the mailing of a document.  In this case, the discrepancy was manifest; thus, nobody can disagree that the Court, in the first instance, properly denied plaintiff’s motion for summary judgment.

“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.

If you remember, the Appellate Term and Appellate Division has been beginning, in no-fault cases, to require the movant of a default judgment to offer proof, somewhat similar to that necessary to prevail on a summary judgment motion, in order to take a default.

Gerdes v Canales, 2010 NY Slip Op 05358 (2d Dept. 2010)

In this personal injury case, the Supreme Court allowed entry of a default based upon the Plaintiff driver rear-ending the Defendant.  For those of you who read this and are unfamiliar with certain aspects of automobile negligence litigation, the rule is simple.  An unexplained rear-end collision raises a presumption of negligence on the part of the rear-ending vehicle.  Thus, under the new rules where the proof in support of a default has to be somewhat similar to that of a summary judgment motion, the Supreme Court should not have granted leave to enter a default judgment.

The Appellate Division reversed.  But, here is where the rub is.  They reversed – not on the ground that the proof presented was insufficient, in the first instance to allow leave to enter a default judgment. Rather, they reversed on the typical 5015(a)(1) grounds.

This is troubling, but nothing surprises me anymore in the world of litigation.  I think this may be DG’s next foray into a law journal article.

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.