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Another denial that was fatally flawedMay 23, 2011

NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 2011 NY Slip Op 04219 (2d Dept. 2011)

“Here, even assuming that the denial of claim form issued by the defendant was timely and was properly mailed to the plaintiff, the form “was fatally defective in that it omitted numerous items of requested information, and thus was incomplete” (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d at 565; see Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929; compare St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733). The denial also incorrectly listed Raquel Uviles as the applicant for benefits instead of the plaintiff”

This is just plain ridiculous already.  I understand the “specificity rule”, but is there prejudice?  Did Henig really not know what was being disclaimed and why?  In my mind, enough with these games already.  Yes, I know the hospitals in this state are hurting, and the latest budget severely curtailed the medicaid reimbursement rate.  But, should the courts impose upon auto insurance policy holders an additional tax because Albany is trying to plug serious budget holes?

15 Responses

  1. Raymond Zuppa says:

    “This is just plain ridiculous already. I understand the “specificity rule”, but is there prejudice? Did Henig really not know what was being disclaimed and why? In my mind, enough with these games already.”

    Yeah like Dan Medical and the case where the Notice to Admit does not get work to admit receipt of the bills wherein an insurance company merely states we mailed every denial so we mailed this one. That doesn’t trouble you.

    “Yes, I know the hospitals in this state are hurting, and the latest budget severely curtailed the medicaid reimbursement rate. But, should the courts impose upon auto insurance policy holders an additional tax because Albany is trying to plug serious budget holes?”

    What you really mean is should the courts hurt insurance company profits because insurance companies do not know how to deny a friggin claim.

    Again I lay down the gauntlet. Get rid of No Fault. Give the citizen his right to sue back. Watch all the freak insurance companies lobby to keep no fault.

    And what’s with the stupid commercials where the mom get’s caught comitting insurance fraud and the girl crys: “We’re not losers are we.”

    Yes you are because you got caught. Do it right next time and you’ll be winners. After all the insurance companies are stealing from you with every premium check you send them.

  2. Larry Rogak says:

    @Ray: How would you feel about a reworking of the rules so that if there’s no serious question that the insurance company got the bills and no serious question that the claimant got the denial, we could just deal with the merits of the claim? Would you consider that fair?

  3. Raymond Zuppa says:

    Really that’s the way it’s supposed to be Larry. But that does not address the specificity requirement re: the denial. Remember the citizens and tax payers traded their rights to sue moron texters and makeup appliers and guys playing drums to the radio — all while driving. We gave up that right — really the Court took it away from us — so that we would have direct assignment and prompt payment.

    If you deny you are upsetting the apple cart. Okay sometimes the cart needs to get upset. But you better have a good reason that is well articulated in the document that says you don’t get paid.

    Geez imagine when I was working at the Robert Plan. If someone gave me a document telling me that I wasn’t getting paid and there was no articulate reason for this — well I would have had to storm the executive section of the building and beat people up … brutally. I mean ugly. I mean like a scene out of a Tarantino movie.

    But I digress.

    Oh I turned to the Pit today just for a laugh. It’s over 5000 hits. Now I know there are sites like this one that get that in a day or a week. But nothing has been done there. I think this means that there is a demand for the pit.

    I am almost done with some stuff and then the Pit is going viral.

  4. Larry Rogak says:

    One of the few benefits of getting old is that you get to be around long enough to gain perspective. Before no-fault turned into “big business” — the late 1990s — insurers rarely issued denials. Why? Because insurers rarely received medical bills that were questionable. After an MVA there was maybe an ER visit, and in serious cases, a hospital stay or surgery. You know, the kind of bills that seem perfectly reasonable under the circumstances. Even when victims trying to build up a BI case did their 90 days of chiro treatment, those rarely got denied. But when 20 unrelated people spill out of a Volkswagen and go directly to “Dox In A Box” for daily regimens of chiro, acu, PT, massage, psych — that’s why you get denials. Because treatment like that doesn’t pass the sniff test.

    Ok, having said that… let the abuse begin.

  5. Raymond Zuppa says:

    Couldn’t agree with you more. Bro I was the only prosecutor making jump-ins do time in Kings County. Before me they used to get a non criminal dispostion and a parade from the Court House back to their neighborhood.

    But I will say that the Insurance Companies have used the fraud issue to hurt legitimate policyholders and claimants. I have seen it personally and sued for it. And the endless commercials. They are making a ton off of no fault in New York.

    Again let us be rid of No Fault.

  6. Sun says:

    Here we go again.

    Blanket denials fundamentally contradict No-Fault law because the insurer is required to consider each claim irrespective of its pronouncement that it will no longer consider claims for the patient prospectively (see 30-day rule, 11 NYCRR 65-3.8). “When a provider of medical services [first] submits a claim as assignee of an insured, neither the statute nor the regulations contemplate the insurer simply sitting mute and failing to act upon the claim, silently and secretly relying upon an earlier [blanket] denial issued directly to the insured” (A&S Medical, 789 N.Y.S.2d at 29, quoting Atlantis Med. v. Liberty Mut. Ins. Co., 2002 N.Y. Slip. Op. 40043U [Dist. Ct. Nassau County 2002]).

    Under JT’s notion that blanket denials are legally sufficient, when the applicant provides indisputable information in a subsequent proof of claim that refutes the insurer’s blanket denial (for example, by proving-up attendance at a medial examination the failure of which to attend was the basis for the blanket denial), the insurer can merely hide behind its blanket denial as its justification for failing to process the new claim. In short, the use of blanket denials provides a built-in excuse for the insurer to refuse to evaluate No-Fault claims on their respective merits, which directly conflicts with No-Fault law.

    Further, under JT’s notion that blanket denials are proper, the insurer may issue multiple blanket denials, none of them referencing a specific claim, and pick and chose its defense at trial from any of those included in any individual form.

    JT’s concept contradicts No-Fault law and policy because it (1) entitles insurers to hide inappropriate carrier conduct behind vague denials of claims; (2) creates uncertainty regarding which denials applies to which claims; (3) allows the insurer to surprise the first-party applicant regarding which defense it will rely on in court; (4) makes it difficult or impossible for the applicant to evaluate the insurer’s defense(s) thereby necessitating more No-Fault actions and less settlements.

    In contrast, it there is no burden for the carrier to simply identify the claim which the denial pertains to.

    Even in a failure to attend medical examination context the carrier should be required to identify the claim, since there are instances where the carrier issues a denial permised upon non attendance and thereafter goes ahead and holds the assignor’s medical examination. In fact, that’s what happened in Unitrin.

    All told, if we are discussing regs that should be judicially eliminated (somehow), how about the 45 day rule? Clearly, such a rule does more to eliminate valid claims for medical care reimbursement then acts as a hedge to claim fraud. This is especially the case with the new policy condition requirements. Anything can be vetted in the verification process, including by virtue of EUO, IME, and sworn statement conditions, so the idea that there must also be a 45 day claim submission deadline as well is bogus.

    • JT says:

      Okay. I will respond to this rant over the weekend, and probably put this all in the main blog area. This has been a ridiculously long week, and I do not have enough brain cells at this moment to respond.

  7. Sun says:

    In the meantime, we can mull over this, from the new york post today regarding ins. broker Waldorf’s fraudulent sale, for 15 years, of IP insurance as standard State regulated insurance. The brokers sold it to schools, non profits, etc. The SID just reached what is now called a “Sweetheart” deal regarding this 15 years of fraud.

    Page 33, “Sin of Commission”

    “The [SID] said that the matter was “a taxation case, not a disciplinary one. Helping the firm win a hush-hush settlement at the end of a 16-month state probe was former Dept. Of Ins. Superintendent Greg Serio, now managing Director at former US Sen. Al D’Amato’s Park Strategies lobby firm. Serio, who also runs his own lobbying firm, Albany based Compass Company Consultants, was hired by the Waldorfs for damage control…

    Serio, an appointee of Gov Pataki ran the [SID] from 2001-2004, and for a decade before that headed its legal department, supervising some of the employees who handed the Waldorf probe, sources say.

    A copy of the settlement was obtained by the post through a [FOIL] request on April 5. The document, however, wasn’t even signed until April 12, a week after it was requested…

    One state official said ‘This raises a lot of questions about what’s going on in the department….'”

  8. Sun says:

    In sum, this is some very cozy hi-jinks that is going on at the SID.

    Waldorf is still a licensed broker after 15 years of behavior that can only be characterized as fraud, after it hired Serio’s lobbying firm.

    Moreover, the “future” dated settlement agreement implies that a new settlement document was generated for the sake of public disclosure. This infers a sort of direct connection between regulator and regulated, both acting as one entity to hide and confuse facts.

  9. Raymond Zuppa says:

    Yeah … tell me about it. If you recall I sued the Superintendent. Every Court up through the Court of Appeals defended them by saying — they can do what they want. Translated: the insurance industry can do what they want.

    Why? The Court’s are political. Politics is money. The insurance industry has dumped so much money into New York State and Federal politics that it shames God himself.

    • JT says:

      So now my blog is becoming a propaganda mill against the insurance industry because Barshay’s blog is down and the Pit is still on active hiatus? As you can see, I pretty much publish everything you guys write, probably at my own peril…

  10. Sun says:

    “So now my blog is becoming a propaganda mill against the insurance industry because Barshay’s blog is down and the Pit is still on active hiatus? As you can see, I pretty much publish everything you guys write, probably at my own peril…”

    But we love u JT!

    No, really, I do appreciate your anti censorship stance.

    It looks like Barshay has been quite the busy litigant. Hopefully he will get NFP back in gear and we won’t have to sully your blog.

    Of course, when a broker sells IP policies as state regulated policies, it’s bad business for all state regulated insurers who are now at a competitive disadvantage, including your clients.

  11. Larry Rogak says:

    Apparently my own blog has cooties: hardly anyone posts on it except for an occasional spambot. Maybe I’m better off; it takes time to moderate posts.

    Anyway I have been counseling against issuing blanket denials for years. They have no legal effect and can only work against the carrier.

    • JT says:

      Larry,

      Personally, I liked the Rogak report when you sent the live cases to our emails. I know you still do that for the non no-fault cases. While I try to read every appellate case that comes out – including family, criminal and sometimes Surrogates Court – I always miss stuff. So, your report comes in handy in those instances.

  12. Raymond Zuppa says:

    J.T. you are a zealous advocate for your clients. I personally hate facing you because you fight so hard. And that’s the bottom line.

    I promise the Pit will be active in two weeks with totally uncensored comments. I hope to be visciously attacked personally so that I may respond even more visciously.

    And remember no one here including yourself has made more brazen statements that are anti piggie provider including insults aimed at piggie provider attorneys. The only thing that disgusts me more then some insurance company conduct — not all insurance companies and not all conduct — is the piggie provider.

    Famous is my stance against knock out chiropractic — also called Chiropractic Under Anesthesia (usually cheap vodka that they put on a wad of paper towels and place on the patient’s face and nose)

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