Kraft v. State Farm Mut. Auto. Ins. Co., 2011 NY Slip Op 21413 (Civ. Ct. Queens Co, 2011)
“Although the parties stipulated that the only issue before this court was the medical necessity of the disputed services, the defendant, both at trial and in the explanation of review, contended that an MUA performed on the hip joint is outside the scope of chiropractic service. Also raised, tangentially, was the frequently encountered contention that a chiropractor is not authorized to perform MUA procedures.
The New York State Workers’ Compensation Board, which supplies the fee structure by which the procedures at issue are to be compensated, has also consistently authorized chiropractors to perform manipulations under anesthesia (Solomon Schecter Day School, 2006 NY Wrk. Comp. 20408277; Eckerd Drug, 2008 NY Wrk. Comp. 40601307; Aramak, 2009 NY Wrk. Comp. 535411) ; see also Giugliano, DC, P.C. v. Merchants Mutual Ins. Co., 29 Misc 3d 367 [Civ Ct, Kings County, 2010]).
Therefore, manipulation under anesthesia is within the lawful scope of chiropractic services provided that, as in this case, the anesthesia utilized for the procedure is administered by a licensed professional and not by the chiropractor.
Thus chiropractors licensed in the State of New York may treat any part of the human body, including the hip joint, provided that treatment is for the purpose stated in Education Law § 6551 (1). In fact, the New York State Workers’ Compensation Board has specifically authorized a chiropractor to perform manipulation of the bilateral hip areas under anesthesia, when the stated purpose was to break-up fibrous adhesions and [*3]scar tissue that had formed on and around the claimant’s spinal column ( Aramak, 2009 NY Wrk. Comp. 535411).
I forgot to discuss this case when it came out 2 weeks ago. It is really a matter of first impression because there has been a lot of controversy regarding the issue of whether a chiropractor was acting within his license when MUA was performed upon the hip joints. Many coders believe that the Education Law prohibits MUA upon the the hip joints. I was on the fence in this regard, and still am. Yet, the weight of authority seems to support Civil Court’s determination.
The other issue regarding whether a chiropractor may perform MUA is a red herring that hopefully is now dead. The answer is yes. Finally, a chiropractor cannot be involved with the administration of anesthesia; yet, did anyone believe this to be otherwise?
As to the merits of MUA, I am not a believer. I have trouble believing that manipulation should be done when someone is out because it would be too painful to perform it if the patient was conscious.
Alrof, Inc. v Progressive Ins. Co., 2011 NY Slip Op 21419 (App. Term 2d Dept. 2011)
I am starting to wonder if this stuff only comes from Kings. Here some things I have seen happen in Kings as a practitioner:
This case fits in category number 1. I have to say this though. What is the economic motivation for a plaintiff attorney not to make a discredited “peer hearsay” argument? The plaintiff is not bringing a doctor and is not presenting any witnesses to support his claim. He has 1000 other cases. The plaintiff enjoys forcing the insurance carrier to pay $1500 for a doctor who will not testify and another $2500 to defense counsel in appellate fees. Also, Plaintiff might get a blood settlement.
Here is the crux of the case:
“Defendant’s doctor should have been permitted to testify as to his medical opinion regarding the medical necessity of the equipment at issue. Although defendant’s doctor had reviewed medical records that had been submitted to defendant by the assignor’s various healthcare providers, the purpose of defendant’s doctor’s testimony was not to establish, for example, the injury to plaintiff’s assignor or to prove that the assignor had received the equipment for which plaintiff is billing in this case (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see also Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52222[U] [App Term, 9th & 10th Jud Dists 2010]; cf. e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 ; Wagman v Bradshaw, 292 AD2d 84 ). It is not defendant’s burden to prove these facts. Defendant’s position in this litigation was that, assuming that the contents of all of the records [*2]were true, including the statements as to the assignor’s alleged injuries, there was, nonetheless, still no medical necessity for the equipment provided to the assignor. To that extent, defendant’s doctor should have been permitted to testify as to the contents of the record she had reviewed. However, as defendant’s doctor did not have to establish the truth of the facts set forth in those records, defendant did not have to establish the reliability of the assignor’s medical records, and plaintiff’s objection lacked merit. Accordingly, defendant’s doctor should have been allowed to testify as to his opinion that the equipment was not medically necessary.
We note that plaintiff, who had every opportunity to employ discovery to obtain all the medical records reviewed by defendant’s doctor, was free to, among other things, use such records to impeach the witness to the extent plaintiff considered defendant’s witness’s characterization of the contents of those records inaccurate. Similarly, plaintiff was free to cross-examine the witness as to his conclusion that the equipment was not medically necessary, or to offer rebuttal witnesses.”
The Court needs to start reversing these cases and dismissing the complaint with prejudice unless the Plaintiff reimburses the Defendant $1,500 for the doctor it brought to defend the case.
Westchester Med. Ctr. v Progressive Cas. Ins. Co., 2011 NY Slip Op 08747 (2d Dept. 2011)
In an action to recover no-fault benefits, a plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed to and received by the relevant insurance carrier, and that payment of no-fault benefits was overdue (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019). No-fault benefits are overdue if not paid within 30 days after the insurer receives proof of claims, including verification of all relevant information requested (see 11 NYCRR 65-3.5, 65-3.8[a]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019).
“plaintiff made a prima facie showing that it had mailed the prescribed statutory billing form to the defendant, and did not receive payment within the requisite 30-day period. In opposition to that showing, however, the defendant insurer submitted proof that it timely issued a denial of this claim. Inasmuch as the plaintiff sought summary judgment only on the basis that the defendant failed to timely pay or deny the claim, the Supreme Court, [should have denied Plaintiff summary judgment] without regard to the merits of the defendant’s denial of the claim.”
Does this mean if a Plaintiff does not put evidence in the record contesting the reason for my denial at trial, I win by basis of showing a timely denied the claim? I am sure this is not what Westchester stands for. Still, it is a possibility.
I am going to opine that a plaintiff moving for summary judgment must now address the deficiencies of a denial in its moving papers. The days of saying I mailed the bill, 30-days elapsed, payment is overdue seems to have ended and now Defendant must prove a defense are over.
This seems intellectually dishonest. Yet, there is something alluring to make the plaintiff’s bar do more work for their money. Furthermore, Mr. Five Boro in the Civil Court must lay a business record foundation for the admission of its bill into evidence.
State Farm Mut. Auto. Ins. Co. v Anikeyeva, 2011 NY Slip Op 08580 (2d Dept. 2011)
The plaintiff commenced this action seeking, among other things, a judgment declaring that it had no obligation to pay no-fault claims submitted to it…professional corporation defendants. The first cause of action sought a judgment declaring that the professional corporation defendants were unlawfully incorporated and, thus, ineligible to collect or recover no-fault benefits. The second cause of action sought a judgment declaring that the services provided by the professional corporation defendants were performed by independent contractors or other nonemployees, and that the professional corporations were, therefore, not entitled to collect or recover no-fault benefits.
Here, contrary to the defendants’ contention, the allegations in the first and second causes of action presented justiciable controversies sufficient to invoke the Supreme Court’s power to render a declaratory judgment (see CPLR 3001; Waldman v 853 St. Nicholas Realty Corp., 64 AD3d 585, 587; cf. State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 321; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740; A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70, 71).
Now I can express a thought I have had, but did not want to share for fear of antagonizing the defense bar. After the Appellate Division, Second Department found that a workers compensation defense (found in 65-3.16 [eligibility to receive no fault benefits]) was subjection to preclusion, I honestly thought that a Mallela and independent contractor defense (also found in 65-3.16) would have been subject to Presbyterian preclusion. Apparently, I was wrong. But it begs the question: why is the former subject to preclusion, while the latter two instances are not? Is a Mallela and Independent contractor situation more egregious than a workers compensation defense, thus obviating the need for a timely disclaimer for the first two? There seems to be a degree of incongruity on this score.
Perl v Meher, 2011 NY Slip Op 08452 (2011)
A major scale back in the threshold standard came from the Court of Appeals. Here are some of the more important statements to come from the Court.
Observation #1: Contemporaneous findings raise an issue of fact as to causation
“a contemporaneous doctor’s report is important to proof of causation; an examination by a doctor years later cannot reliably connect the symptoms with the accident. But where causation is proved, it is not unreasonable to measure the severity of the injuries at a later time (see Morrissey, “Threshold Law”: Is a Contemporaneous Exam by Court of Appeals in Order? New York Law Journal, January 17, 2011). Injuries can become significantly more or less severe as time passes.”
Observation #2: Causation (MRI films)
Defendants in Perl did indeed present evidence, in the form of a sworn radiologist’s report based on an MRI, that Perl’s injuries were “degenerative in etiology and long standing in nature, preexisting the accident.” However, plaintiffs’ contrary evidence, while hardly powerful, was sufficient to raise an issue of fact. They submitted another radiologist’s affidavit, saying that, while some findings from the MRI “are consistent with degenerative disease,” a single MRI cannot rule out the possibility that “the patient’s soft tissue findings are . . . [*6]a result of a specific trauma.” That question, this radiologist said, can best be judged “by the patient’s treating physician in conjunction with exam, history and any previous tests.”
The treating physician, Dr. Bleicher, opined that since Perl “had not suffered any similar symptoms before the accident or had any prior injury/medical conditions that would result in these findings,” the findings were causally related to the accident. A factfinder could of course reject this opinion: It is certainly not implausible that a man of 82 would have suffered significant degenerative changes. We cannot say as a matter of law on this record, however, that such changes were the sole cause of Perl’s injuries.
Observation #3 Insurance Law 5102(d) – contemporaneous requirement – not required
“We agree with the Appellate Division dissenters in Perl that a rule requiring “contemporaneous” numerical measurements of range of motion could have perverse results. Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries. We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery.”
I suspect the only threshold hurdles that exist are now (1) objective findings at some point within the treatment; (2) continuous treatment although issues of palliative care and the cessation of benefits obviate this requirement; (3) recent examination prior to motion and trial.
It looks like NY Fair and the Trial Lawyers authored this disaster for the defense bar.
Roman Chiropractic, P.C. v Lumbermens Mut. Cas. Co., 2011 NY Slip Op 52090(U)(App. Term 2d Dept. 2011)
“A no-fault cause of action accrues when payment of no-fault benefits becomes “overdue”.
However, in the Civil Court, defendant did not offer its denial of claims forms or any other proof of facts regarding the timeliness of the action of January 10, 2008 in relation to the denial of claims or the lapse of the 30-day “pay or deny” rule. Accordingly, defendant failed to meet its burden to establish that the cause of action accrued on any of plaintiff’s seven claims more than six years prior to the commencement of this action.”
Finally, the Appellate Term has articulated that for statute of limitations purposes, the clock begins to run at the sooner of the date of denial or the 30-day pay or deny period following submission of the bill.
Lenox Hill Hosp. v Government Employees Ins. Co., 2011 NY Slip Op 08330 (2d Dept. 2011)
“Given the limited nature of the plaintiff’s motion for summary judgment, which established the plaintiff’s prima facie entitlement to judgment as a matter of law solely on the ground that the defendant did not pay or deny the subject claim within 30 days (see 11 NYCRR 65-3.8[c]), the defendant’s only burden in opposition to the motion was to raise a triable issue of fact regarding its timely payment or denial of the claim”
Okay – here is something… what the heck did Plaintiff’s motion for summary judgment say? Looks like I am going to have to grab the record on this one.
I think Judge Jones really made some powerful statements. I must disagree with your myopic view of Westchester v. Lincoln. Time will tell as the 2nd Department will have to deal with the Unitrin claim denial issue head on, as opposed to the hospital bill denial paradigm, when the carrier is in the defensive posture. Just like I knew Unitrin was not making it to the Court of Appeals, I suspect the Second Department will settle on something between Westchester v. Lincoln and Unitrin. The Nassau Supreme judges I think hit the nail on the head, as I have demonstrated on my myriad contested DJ victories.
But I never picked the right ponies, so do not take what I say as gospel, or anything near it.
Westchester is still good law and the Appellate Term, 2nd Department still follows it. In slew of cases, the Appellate Term, Second Department confined Unitrin to a but see staus and took pains to state that the denails were time and therefore the insurer was not precluded from asserting the defense of violating a condition precedent to coverage.
You are reading too much into NYP V. Countrywide, that was simple 30 day written notice requirement case.
JT. One final thought. I do not see the Appellate Divison going your way. In fact, based upon my reading of the recent decisions of the Appellate Division, Second Department, including Lincoln General(EUO no show defense is subjec to preclusion), Weschter Medical v. GMAC (fraud in the procurement of the policy is subject to preclusion) and Nyack Hopsital v. Allstate (intent to commit suicide is subject to preclusion)I predict that the latter Court will rule in the near future that a defense predicated on Malella is subject to the preclusion rule. The Appellate Division, Second Department has adopted a rigid interpretation of Fair Price, i.e, as long as there is an actual accident and injuries, the preclusion rule applies.
It is hard to rule against a hospital because of the massive Medicaid funding cutbacks that these entities have endured over the years. Hospitals are the last ditch entity of the sick and inform . They are also the first line of defense to the traumatically injured. To rule against hospitals is a politically and morally unpalatable thing to do.
You are assuming that the “rules” you set forth above apply evenhandedly and mechanistically to hospitals and run of the mill medical clinics on Avenue X, Kings Highway, Cropsey Avenue, West Tremont, etc. The Second Department – the court you cite- has held otherwise. Compare the cases you cited to Matter of Carothers and Art of Healing.
The next set of policy violation and condition precedent cases to hit the App. Div. 2nd Dept may very well be the legion of Interboro and American Transit declaratory judgment cases that I have prosecuted in Nassau, or that some other firm has diligently fought in the Second Department. I tend to think that the jurists at 45 Monroe will look at Mr. Five Boro and Mr. SK Prime a lot differently than they would view NY Presbyterian hospital and Nyack Hospital. I sure as heck would.
Look at the entire picture, Mitch. Law is not some rigid, impenetrable organism that follows the “if x then y syllogism”. There are political and other salient factors that tend to dictate the development and movement of the rules of law that are pronounced.
Do you think there would be a business record requirement as part of a plaintiff’s prima facie case if the more frequent players at the Appellate Term were Mr. Nyack Hospital and Lenox Hill Radiology, P.C., as opposed to Mr. AB Medical., Mr. Square Synagogue transportation, Inc., Amaze Medical Supply Inc. and of course Mr. Five Boro?
Just like bad cases make bad law, unsympathetic plaintiff’s make equally bad law. Perhaps people do not like to believe the above because it seems hypocritical and reminds people of Bush v. Gore in some sense. Yet, to take a myopic view of the law and to lose sight of the big picture will not suit any intelligent discourse on a particular issue fitting the trends in PIP law.
In light of the Third and Fourth Department holdings in the Article 10 arena and the Appellate Term’s holding that an adversary’s medical records do not need a proper a foundation, it seems senseless for a court to against find that an assignor’s medical records i) require an evidentiary foundation to come into evidence; or ii) cannot be relied upon by an expert to come to a conclusion as to the appropriateness of the rendered service.
This proposition began on the SJ side about 3 decades ago and through logical expansion, found its way into the trial and framed issue hearing postulate. Every time I read cases like this, I shake my head because these judges are applying the wrong law to the correct facts. What happens next? Defendant appeals and it gets reversed, or modified. I say modified because there is a 3212(f) issue, which might be valid. Yet, who knows anymore. I like Judge Hirsh – very well thought out – but he is wrong on this one.
Here is the part of the order that I am reproducing:
“Reports of health care providers prepared for litigation are not admissible in evidence. Id.; and Carter v. Rivera, 24 Misc 3d 920 (Sup.Ct. Kings Co. 2009).
What constitutes good and accept chiropractic practice is generally beyond the knowledge of the average layperson. DeLong v. County of Erie, 60 NY2d 296 (1983); and Citywide Social Work & Psy. Serv., P.L.L.C. v. Travelers Indemnity Co., supra. The court must rely upon the opinion expressed by the peer reviewer to determine whether the services in question are medically necessary. [*5]
Before an expert witness is permitted to offer an opinion, the witness must be qualified as an expert. Price v. New York City Housing Auth., 92 NY2d 553 (1998); Caprara v. Chrysler Corp., 52 NY2d 114, rearg. dnd. 52 NY2d 1073 (1981); and Meiselman v. Crown Heights Hospital, 285 NY 389 (1941). To qualify as an expert, the witness must possess “…the requisite skill, training, education, knowledge or experienced from which it can be assumed that the information imparted or the opinion rendered is reliable (citations omitted).” Matott v. Ward, 48 NY2d 455, 460 (1979); and de Hernandez v. Lutheran Medical Center, 46 AD3d 517 (2nd Dept. 2007). Therefore, before the court can consider the opinion, the party whose opinion is being relief upon must be qualified as an expert. Machac v. Anderson, 261 AD2d 811 (3rd Dept. 1999). Simple stating one is a licensed professional is not sufficient to establish the peer reviewer is an expert. See,
Mustello v. Berg, 44 AD3d 1018 (2nd Dept. 2007); and Postlethwaite v. United Health Services Hospitals, Inc., 5 AD3d 892 (3rd Dept. 2004). In this case, defendant offered no evidence qualifying Dr. Csillag as an expert.
An opinion must be based upon facts in the record or facts personally know to the witness. Prince-Richardson On Evidence §7-308 (11th Ed. Farrell). “An expert may not reach a conclusion by assuming material facts not supported by the evidence and may not guess or speculate in drawing a conclusion. (Interstate Cigar Co. v. Dynaire Corp., supra, at 700).” Lee v. Shields, 188 AD2d 637, 639 (2nd Dept. 1992). The court questions how it can determine the validity of the peer reviewer’s medical rationale since it is based upon material not in the record and material that would be inadmissible at trial as hearsay. See, Urban Radiology, P.C. v. Tri-State Consumer Ins. Co., 27 Misc 3d 140(A) (App.Term, 2nd, 11th & 13th Jud. Dists. 2010) – The peer reviewer is not using the medical records reviewed in preparing a peer review for the truth of the material contained in those records.A peer reviewer may use this material to render an opinion provided it is professionally reliable, meaning that it is the type of material “…accepted in the profession as a basis for forming an opinion and the out-of-court material is accompanied by evidence establishing its reliability.” Wagman v. Bradshaw, 291 AD2d 84, 87 (2nd Dept. 2002). Nothing in the peer review report submitted in this matter establishes the material relied upon by the peer reviewer was material generally accepted in the profession as a basis for forming an opinion or the out-of-court material is accompanied by evidence establishing its reliability.”
AKS Med., P.C. v Clarendon Ins. Co., 2011 NY Slip Op 52072(U)(App. Term 2d Dept. 2011)
“the affidavit of plaintiff’s treating physician submitted in opposition to defendant’s motion was sufficient to demonstrate that there is a triable issue of fact as to medical necessity (cf. 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]).”
The cite “c.f. Pan Chiropractic, P.C.” can never be good for a Defendant.