Notice of Trial vacated based upon a “detailed” Mallela showing

VE Med. Care, P.C. v Auto One Ins. Co., 2012 NY Slip Op 50571(U)(App. Term 2d Dept. 2012)

“Because the notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed, the Civil Court properly granted the branch of defendant’s motion seeking to vacate the notice of trial”

“Defendant’s moving papers set forth detailed and specific reasons for believing that plaintiff is ineligible to recover no-fault benefits because plaintiff fails to meet applicable state and local licensing requirements”

Leave denied

Mercury Cas. Co. v Encare, Inc., etc., 2012 NY Slip Op 69137 (2012)

Congratulations to my able adversary Howard Stern, Esq., who prevailed on this case, all the way from arbitration to my leave application to the Court of Appeals.  We shall say he earned every dollar he obtained for his client and begrudgingly I salute him.

I will dream up my next battle.  Any ideas?

More MUA – this one is over the top

Flatbush Chiropractic, P.C. v Metlife Auto & Home, 2012 NY Slip Op 50541(U)(Civ. Ct. Kings Co. 2012).

The Plaintiff, Dr. Super’s brother runs a law firm about 2 floors up from me in my building here in Garden City.  His firm probably handles the lion’s share of his MUA enterprise.  I had a conversation with one of the attorneys who told me that Dr. Super does not believe in the fee schedule for MUA.  Civil Kings, true to form, never surprises me.

There are three passages from this case that intrigue me.  I am ignoring the medical necessity portion of this opinion because that is a whole different issue.

Passage one: “Defendant’s claims examiner testified that pursuant to the Workers Compensation Board chiropractors should only be compensated at a rate of 68.4% of the Fee Schedule. Through the testimony of Dr. Super, Plaintiff refuted this position stating that the Fee Schedule makes no such distinction.”

Passage two: “The Court takes judicial notice of an opinion letter (dated August 14, 2009) from Kenneth J. Munnelly, General Counsel of the Workers’ Compensation Board, which concludes that chiropractors who perform MUAs should be compensated at a rate of 68.4% of the allowable rate for medical doctors who perform the same procedure given the relative experience and training of a medical doctor versus that of a licensed chiropractor.”

So, now that it has been established that Dr. Super is greedy, you would think it would end here.  Nope.

Passage three: “Also at issue was the applicability of Ground Rules 5 and 12 of the Fee Schedule. Ground Rule 5, the multiple procedure rule, stands for the proposition that when multiple procedures are performed payment for the first procedure is paid at 100% and payment for additional procedures is reduced by 50%. Ground Rule 12(d), which Defendant applied, covers the apportionment of payment between two attending surgeons. Here, Defendant reduced Plaintiff’s bill according to Ground Rules 5 and 12. Plaintiff argued that Ground Rule 5 does not apply to MUAs because MUAs of the shoulders, hips, and cervical, thoracic, and lumbar spine are each distinct, stand-alone procedures involving separate body parts and as a result it was not appropriate to reduce payment pursuant to Ground Rule 5. Dr. Super compared MUAs to regular chiropractic manipulation procedures, where each part of the spine is billed as a separate and distinct procedure. Dr. Super also stated that Ground Rule 12 does not apply because according to the “Introduction and General Guidelines” of the Fee Schedule and Modifier 62, each chiropractor is entitled to separate and full [*4]payment for their services when two chiropractors work together as primary chiropractors and perform distinct parts of a procedure. Dr. Super maintained that both he and Dr. Klass are entitled to 100% of the fee billed because MUA guidelines require MUAs to be performed by two doctors, and here both he and Dr. Klass were co-attending chiropractors who each performed co-primary functions throughout the MUAs which entitled them each to full payment for the procedures independent of each other.The Court agrees and credits Dr. Super’s testimony and finds that the Plaintiff did not bill in excess of the Fee Schedule. Dr. Super has performed and billed MUAs for the past thirteen years. He was trained in the Fee Schedule by certified coding experts and has conducted research on the Fee Schedule in order to ensure that he bills according to the services performed and pursuant to the Fee Schedule. As the treating chiropractor, Dr. Super is in the best position to assess the treatment rendered and bill accordingly. Dr. Super’s testimony that each of the MUAs he performed are separate and distinct procedures coupled with the fact that MUA guidelines mandates two chiropractors justifies full compensation for each chiropractor.”

It is comical.  The court established that Dr. Super does not acknowledge the validity of the fee schedule and trims down his billing by about 50% at least.  After this, the Court finds Dr. Super to be a coding expert and allows him to ignore the 50% ground rule and multiple surgeon ground rule.

Falso in uno, falso in omnibis?  PJI 1:75 anyone?

Just remember this adage: “Pigs get fat and hogs get slaughtered.”

Knowledge is quite a broad term

Harris v Seager, 2012 NY Slip Op 02207 (4th Dept. 2012)

“Contrary to defendants’ contention, plaintiff was not required to establish that defendants had notice of the [*2]allegedly dangerous nature of the threshold and stairway. To establish the notice element of her negligence claim, plaintiff was required to demonstrate that defendants had notice of conditions that she alleged were dangerous, but she was not required to demonstrate that defendants knew that those conditions were dangerous (see generally PJI 2:90; Tanguma v Yakima County, 18 Wash Ct App 555, 563, 569 P2d 1225, 1230, review denied 90 Wash 2d 1001). To the extent that defendants rely on dicta in the decision of the Third Department in Richardson v Rotterdam Sq. Mall (289 AD2d 679, 682) that suggests otherwise, we decline to follow it. We note that, in support of their motion for a directed verdict, defendants did not contend the alleged defects in the property were “trivial as a matter of law.”

As long as you knew it was there, it did not matter that you knew it was dangerous…  This is every Plaintiff lawyer’s dream.

5520 applies to reargument orders that were never appealed

People v Johnson, 2012 NY Slip Op 02213 (4th Dept. 2012)

“Following entry of the order granting that part of defendant’s motion, the People moved for leave to reargue with respect thereto. The court granted the People’s motion insofar as it sought leave to reargue and adhered to its prior determination. The People appealed from the original order and failed to appeal from the subsequent order entered on reargument, which superseded the original order (see Loafin’ Tree Rest. v Pardi [appeal No. 1], 162 AD2d 985). We exercise our discretion to treat the notice of appeal as one taken from the subsequent order (see CPLR 5520 [c]; see e.g. Kanter v Pieri, 11 AD3d 912, 912).”

I learn something new every day.

Major medical carrier taken to the mat for unscrupulous conduct

Kamhi v EmblemHealth, Inc., 2012 NY Slip Op 22073 (Sup. Kings 2012)(Demarest, J.)

Major medical.  It is a different world.  First-level “utilization reviews” of conservative treatment are performed by individuals who are properly credentialed to review nothing more than perhaps the format, size and typeface of a UB-04 or maybe a HCFA 1500.  There is a reason why more than 50% of Level 2 appeals to the Medical Society get reversed, and it is not because: (a) someone did not prove a “denial was mailed”; (b) it was demonstrated that an NF-10 has a typographical error; (c) an attorney convinced a judge that Great Wall does not apply today (although it applied yesterday and will apply tomorrow) because of some vague App. Term decision  that involved CPT Code 99203; (d) the magical words “The Court should take Judicial Notice of the fee schedule” were not in someone’s papers; or (d)  AAA needs to keep Applicant win ratios at 70-80 percent on medical necessity cases in order to stay in business.  Rather, it is because many major medical carriers operate in an alternate and distinct universe.

I would also add that if the no-fault carriers reviewed claims the way major medical providers did, then I think many of the gripes the plaintiff’s bar expresses in court and on here might have palpable merit.

The reality of major medical is that whereas the no-fault insurance carriers are seemingly stuck having to process claims from all types of healthcare providers, major medical providers can put their proverbial foot down and kick anyone out of their network.  Well, so they thought.

One doctor who had enough struck back, and a Supreme Court Justice seemed unhappy at the major medical carrier and denied the motion to dismiss, except for one portion of a cause of action, of which leave to re-plead was granted.

Here are the pertinent facts:

“Between January 2007 and December 2010, Lawrence M. Kamhi, M.D., and his medical practice, Lawrence M. Kamhi, M.D., P.C. (collectively, plaintiff), participated in the GHI and HIP health care plans in the specialties of anesthesiology and interventional pain management. Plaintiff alleges, and it is not disputed, that his participation was pursuant to a three-year contract which was “automatically renewable each year” (¶ 8).[FN2] In October 2010, plaintiff received written notices from Emblem, advising him that his participation in defendants’ health care plans would expire on December 31, 2010 and would not be renewed. These notices expressly state: “This decision [not to renew plaintiff's participation in the health care plans] is not related to the quality of care received by Plan members and does not involve a peer review determination; as such it is not a reportable credentialing determination.” (bold type in original). Plaintiff alleges that defendants elected not to renew his participation solely because of his prior complaints against defendants. Plaintiff asserts that he commenced a prior action against defendants for monetary damages in the Kings [*2]County Civil Court, Index No. 7240/09 in November 2009 (the collection action), upon which he obtained a default judgment in February 2010 for what he describes as multiple unpaid or denied medical invoices, and successfully opposed defendants’ motion to vacate the default judgment. Plaintiff alleges that when the judgment remained unpaid, he had legal counsel at the Medical Society of the State of New York write a letter to defendants on his behalf urging them to pay the judgment, but had to hire a City Marshal before he succeeded in collecting the judgment.

Plaintiff further alleges that after he obtained satisfaction of his judgment in the collection action, defendants continued to deny his claims without justification. He states that approximately one month before his participation was not renewed, he spoke on the telephone with defendants’ Senior Executive of Provider Relations who allegedly informed him that ” there was no other reason whatsoever that Emblem was not renewing [Plaintiff's] in-network contract except for [Plaintiff] posed too many complaints about Emblem’s claims reimbursements and even went so far as to take Emblem to Court, on one occasion’” (¶¶ 37, 47).[FN3]

Plaintiff alleges that his advocacy and complaints were the principal reasons why defendants failed to renew his participation in their health care plans. There is no suggestion in defendants’ motion papers that the non-renewal of plaintiff’s contract was prompted by any cause other than the complaints plaintiff has made. According to plaintiff, he was advocating for his patients when he instituted the collection action in the Small Claims court, as the alternative to plaintiff’s recovery from defendants would be to charge the patients for these allegedly pre-authorized services. In addition, plaintiff asserts that he filed written complaints with the New York State Attorney General’s Office and the New York State Department of Health “in reference to Defendants’ egregious behavior” (¶¶ 35, 45). Lastly, he asserts that he “has requested reconsideration and review of his contract [non-renewal] with Defendant[s], to no avail” (¶¶ 35, 45).

The Court  in large part denied the motion to dismiss.

Another no-fault physician commits insurance fraud

People v Palmeri (Michael), 2012 NY Slip Op 22040 (App. Term 2d Dept. 2012)

It has just been an awful few months for the plaintiffs bar out there.  First, many defacto owners of certain supply companies take guilty pleas, forfeit millions of dollars and end up with non-parolable 3-5 year sentences.  Second, the feds in what appears to be the type of investigation known to stopping the Italian Mafia sends a well-deserved shock wave through our legal community.  Now, a surgeon’s conviction for insurance fraud has been sustained.  Just so you know, I am a month late on this one.

“The testimonies of the People’s witnesses appear truthful on their face, they are internally consistent as to material fact, and established that defendant knew, when he filled out the C-4 forms, that his patient was “working” within the meaning of question 7 on the form, and not “totally disabled” within the meaning of question 8 on the form. In so falsifying the C-4 forms, and filing said forms with the Board, defendant offered false instruments for filing in the second degree and committed insurance fraud in the fifth degree and petit larceny.”

They call her crash

Hedgecock v Pedro, 2012 NY Slip Op 02005 (4th Dept. 2012)

Four accidents and a court having to discern which accidents are sufficient to sustain a serious injury.

I am not sure if there is a no-fault link except for the nascent issue of which claim or insurance policy should cover the medical bills.  But, what interests me is that the court actually delineated between the “significant limitation” and “permanent consequential” categories of 5102(d).  It is also another example of the role that chiropractor’s play in these cases.

“In opposition to the motions, plaintiff submitted her entire deposition testimony, the affidavit of her treating chiropractor and the affidavit of her treating neurologist.

(1) Combined effect of all accidents: Inasmuch as the treating neurologist discussed the combined effect of all four accidents on plaintiff’s symptoms, his affidavit fails to raise a triable issue of fact whether the first or second accident caused a serious injury (see generally Zuckerman v City of New York, 49 NY2d 557, 562).

(2) Accident number one: With respect to the first accident, the affidavit of the treating chiropractor detailed plaintiff’s worsening migraine symptoms following that accident and noted that there were muscle tension and trigger points upon palpation following that accident. The treating chiropractor also stated that plaintiff’s symptoms improved prior to the second accident, but that her medical condition had not returned to the state it had been in immediately prior to the first accident.

(3) Accident number two: With respect to the second accident, the treating chiropractor stated that plaintiff’s symptoms had not improved with treatment prior to the third accident, which occurred nearly one year after the second accident, and he outlined the quantitative restrictions of the range of motion of her cervical and lumbar spine, comparing those restrictions to the normal range of motion (see Burke v Moran, 85 AD3d 1710, 1711; cf. Houston v Geerlings, 83 AD3d 1448, 1449-1450). Further, plaintiff was granted a medical withdrawal from her graduate studies immediately following the second accident based upon the frequency and intensity of her migraine headaches, each of which lasted up to 24 hours and prevented her from driving, attending classes or doing household chores.

(4) The Courts decides: Thus, we conclude that plaintiff raised a triable issue of fact sufficient to defeat those parts of each motion with respect to the significant limitation of use category (see generally Roll v Gavitt, 77 AD3d 1412), as well as the 90/180-day category (see generally Houston, 83 AD3d at 1450). Because plaintiff’s treating chiropractor stated that plaintiff’s symptoms had not improved in the nearly one-year period between the second and third accidents, we conclude that plaintiff also raised a triable issue of fact sufficient to defeat that part of the Sterman defendants’ motion with respect to the permanent consequential limitation of use category (see generally Roll, 77 AD3d 1412). We further conclude, however, that plaintiff failed to raise a triable issue of fact sufficient to defeat that part of Pedro’s motion with respect to the permanent consequential limitation of use category, inasmuch as plaintiff’s treating chiropractor stated that her symptoms improved prior to the second accident, and thus that the court erred in denying the motion in its entirety. We therefore modify the order accordingly.”

When can you “change the caption”?

Wendover Fin. Servs. v Ridgeway, 2012 NY Slip Op 01884 (4th Dept. 2012)

I like when I receive a motion from Mr. Five Boro looking to change the caption to Senor (how do I get the spanish n with a tilda on the computer?) Allboro.  Those motions, obviously made to save the $45 index number fee, are always defective.  Quite a few judges acquiesce to it.  The Fourth Department, however, is not impressed.

“Further, we conclude that the caption may not be properly amended pursuant to CPLR 305 (c). “That provision is generally used to correct an irregularity, for example where a plaintiff is made aware of a mistake in the defendant’s name or the wrong name or wrong form is used” (Marte, 58 AD3d at 4). In the order appointing a referee, the court amended the caption of this [*2]action by “striking the name of the defendant AMELIA DONVITO A/K/A AMELIA C. DONVITO . . . and substituting in place thereof JO-ANN RIDGEWAY AS HEIR TO THE ESTATE OF AMELIA DONVITO A/K/A AMELIA C. DONVITO . . . .” Here, however, decedent was never a party to the action, and thus there was no party for whom substitution could be effected pursuant to CPLR 1015 (a).”

What are objective signs of continuing disability?

Harrity v Leone, 2012 NY Slip Op 01933 (4th Dept. 2012)

“Plaintiff, however, raised an issue of fact with respect to those two categories by submitting the affidavit of her treating physician, who outlined the objective medical evidence of plaintiff’s injury in those two categories, including a positive EMG test indicating acute bilateral radiculopathy at the L5 nerve root (see Frizzell v Giannetti, 34 AD3d 1202, 1203), positive straight leg tests (see id.; see also Lavali v Lavali, 89 AD3d 574, 575), positive Patrick tests (see Parczewski v Leone, 14 Misc 3d 1218 [A], 2003 NY Slip Op 50065[U], *2 [Sup Ct, Queens County]; see also Navedo v Jaime, 32 AD3d 788, 788), and notations of muscle spasms and trigger points (see Pagels v P.V.S. Chems., Inc., 266 AD2d 819, 819)”

I find it ever so amusing, if not a tad ingenuous, when the Appellate Divisions decide that certain “tests” are objective as a matter of law. It probably works well as a defense attorney in an IME doctor v. plaintiff hired gun case.  It obviously is lethal to a defense attorney in a BI case.  Still, you have to wonder.

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