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Ortho Med Supply – more than meets the eyeApril 23, 2009

The recent trend in Appellate Term jurisprudence involving cases with (u) or Misc (a) cites is to take the approach that the Appellate Division, Second Department takes in terms of reasoning a case. The Court will cite to other precedent which, on their facts, should guide the reader as to what the law is in the matter sub judice. The other trend is for the courts to deem certain challenges “unpreserved” or unpreserved, yet without merit if preserved.

Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co.
2009 NY Slip Op 50731(U)(App. Term 2d Dept. 2009)

If you read the facts of this case, you would think this is another “medical necessity” summary judgment motion that another carrier interposed. Yet, if you read the record on appeal, you would see something different.

This case involved a denial that on its face was dated one month previous to its generation date. Therefore, the denial was dated prior to the receipt date of the bill. The carrier, in their motion for summary judgment, presented an affidavit from someone with personal knowledge that this was a scrivener’s error and based upon a review of the computer records and the paper file, the denial was generated one month following the date set forth on the denial. The affidavit then went on to state that it was mailed in the manner consistent with properly dated denials. Thus, it was mailed on the date it should have been dated or the next business date, in accordance with the carrier’s standard mailing procedures.

Plaintiff opposed the motion and cross-moved, arguing that the denial was fatally defective. The carrier prevailed on its motion and the plaintiff appealed.

On appeal, the plaintiff then went on to argue, besides its preserved argument, that the denial could not be considered a business record since it had the wrong date on it. If a denial is not deemed a business record, it may not be considered by the Court. Hospital v. Elrac and Montifiore v. Liberty stand for those propositions of law.

The carrier argued that a proper foundation was laid and any defects in the “business record” would go to the weight – not the admissibility – of the business record.

Following consideration of all the proofs, the Appellate Term affirmed the grant of summary judgment to the carrier.

Now if only the entire procedural history of this whole case were set forth in the opinion, it might be worth something more than a (u) cite.

But what I can say is that if a defect is not numerous and you spell it out in a decent affidavit, the Appellate Term will give you a pass.

One Response

  1. D. Barshay says:

    Excellent analysis. Wasn’t there also a hidden gem in the record on appeal of Rogy Med., P.C. v Mercury Cas. Co., also rendered today?

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