Stipulated to defeat.April 14, 2014

All-In-One Medical Care, P.C. v. Government Employees Ins. Co., 2014 N.Y. Slip Op. 24070 (Dis. Ct. Nassau Co. 2014)

This is what happens when we all stip to everything.  Now, we end up in Court with the usual arbitration paradigm where a Plaintiff that provides contemporaneous treatment notes defeats the IME examination and testimony therein.  This is reality.

First, at trial, Court finds Dr. Emmanuel’s testimony was sufficient to estblish a prima facie showing that further services lack medical appropriateness.  Burden now shifts.

“In the face of such showing by defendant, plaintiff attempted to meet its burden through submission of post-IME medical records. “Follow-up progress notes” from Dr. Jean Claude Demetrius document monthly post-IME evaluations of Santo Fernandez that were performed between November 2010 and February 2011. In his January 11, 2011 report, for example, Dr. Demetrius notes that the patient’s pain course “has been moderately improved with current physical therapy and acupuncture” but “still has significant pain in neck and lower back with radiating pain and paresthesia to the both upper and lower extremities.” In addition, Mr. Fernandez continued to complain about shoulder pain. Upon examination of the patient’s shoulders, Dr. Demetrius found mild tenderness in the right shoulder, severe tenderness in the left shoulder, and decreased range of motion in the upper extremities.” [Commentary: This is what causes the carrier to suffer defeat in arbitration]

“Based upon these findings and other documented examination results, Dr. Dimetrius’s “diagnostic impression” included cervical and lumbar strain-sprain, cervical and lumbar discogenic disease/radiculopathy, and right/left shoulder joint pain secondary to contusion and ligament/tendon tear. His “diagnostic plan” called for “[c]ontinued physical therapy” and a follow-up re-evaluation in 4-6 weeks. Similar findings and recommendations were made in his earlier and later reports.”

At this point, the Court discusses the fact that these notes would not come into evidence absent a proper foundation, and cites to Wilson v. Boden.  The Court is correct on this score.  But unobjected to hearsay is competent evidence, and I will cite to a certain Plaintiff attorney who in the middle to later 2000s reminded me of that when I used to hang out in Civil Court.

As to a missing witness instruction, this is inappropriate since the party for whom this charge will be sougth has to be on notice before he rests his case that this will be charged to the finder of fact.  Defendant, presumably knowing Plaintiff’s witness list, did not put the Plaintiff known as soon as possible that it would seek a witness charge should Plaintiff not bring a witness to trial.  Also, if you do not ask for a missing witness charge, you do not get it.  On this record, the Court inappropriately went down a road that was never opened for traffic.

Can treatment notes at trial win the day for Plaintiff when the judge fully credited Defendant’s expert’s testimony?  Probably not.  This is identical to the line of cases where it was held that a peer report allowed into evidence is insufficient to satisfy a party’s prima facie showing of lack of medical appropriateness since medical necessity can only be discerned through live testimony.

But, I think if Defendant allowed these into evidence, then the Court (if not constrained by Appellate Term precedent that I think is wrong) had every right to consider these reports.  Furthermore, since there was no objection to the reports coming into evidence nor was an adverse inference sought, the Court but for Appellate Term precedent to the contrary was justified in its findings of fact and conclusions of law.

However, given the state of law, Defendant should have won.  Interestingly, these are the kinds of case that should be thrown into arbitration.  Typed up monthly examination notes contemporaneous to the IME, along with (I am guessing) positive nerve tests and MRI’s to corroborate the functional and structural disabilities demonstrated on the clinical examination.



One Response

  1. Kurt Lundgren says:

    Agree with you Jason.

    Anyone with an MD attached to their name who says they were hired by an insurance company to exam and insured can come into Court and say just about anything and the insurance company may likely prevail.

    That doesn’t work in arbitration.

    I wonder how the Court system will respond when the millions of dollars in revenue disappears when fewer cases are filed?

    All we all want is a level playing field to make our arguments. Court used to be fun and a great opportunity for all of us to learn, try different direct and cross examinations, fight on evidence (win or lose), etc.

    Now, a peer doctor can say that an MRI was not necessary because the patient’s wife says he has no spine – and therefore what was there to film?

    Even Captain American, that great patriot, and his loyal side kick Wang Chung cannot stomach the one sided justice visited upon the innocent consumer. Truth, Justice and the American way have been given up for Delay, Deny, Defend.

    As the Most Interesting Man in World recently said “I don’t often do no-fault, but when I do, its in arbitration”.

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