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What a line June 15, 2019

Monzon v Porter, 2019 NY Slip Op 04855 (4th Dept. 2019)

“Where opinion testimony is contradicted by the facts, the facts must prevail” 

Gaps in treatment and the need for contemporaneous treatment June 14, 2019

Jackson v Doe, 2019 NY Slip Op 04765 (1st Dept. 2019)

“Defendant satisfied his prima facie burden of showing that plaintiff did not sustain a serious injury to his cervical spine, lumbar spine or left wrist as a result of the 2013 motor vehicle accident. Defendant’s neurologist found that plaintiff had full range of motion and negative test results in his cervical and lumbar spine, and that any injuries had resolved (see Alverio v Martinez, 160 AD3d 454 [1st Dept 2018]; Frias v Son Tien Liu, 107 AD3d 589 [1st Dept 2013]). Defendant’s expert was not required to review plaintiff’s medical records before forming his opinion (see Mena v White City Car & Limo Inc., 117 AD3d 441[1st Dept 2014]). Defendant also relied on plaintiff’s deposition testimony admitting that he returned to work full-time as a personal trainer within two months of the accident, received just three months of physical therapy and sought no further medical treatment following a November 2014 procedure to his lumbar spine. This testimony both defeats plaintiff’s 90/180-day claim and demonstrates that his injuries were not serious, but were minor in nature (see Castro v DADS Natl. Enters., Inc., 165 AD3d 601, 602 [1st Dept 2018]; Frias v Son Tien Liu, 107 AD3d at 590). Defendant further pointed out that plaintiff was required to explain his extended gap in treatment following the November 2014 procedure (see Pommells v Perez, 4 NY3d 566, 574 [2005]).

In opposition, plaintiff failed to raise a triable issue of fact. He provided no medical evidence of serious injury to his cervical spine or wrist, but only the report of his treating physician, who first examined plaintiff’s lumbar spine six months after the accident. Neither plaintiff nor the physician explained plaintiff’s two separate two-year gaps in treatment (see [*2]Pommells at 576; Alverio v Martinez, 160 AD3d at 455). Furthermore, in the absence of any admissible evidence of contemporaneous, post-accident treatment or evaluation of his alleged injuries, plaintiff failed to raise an issue of fact as to whether his conditions were causally related to the accident (see Santos v Traylor-Pagan, 152 AD3d 406 [1st Dept 2017]; Rosa v Mejia, 95 AD3d 402, 404 [1st Dept 2012]).”

So what happened here? There’s a finding of resolution of injury. The court required that Plaintiff explain gaps in treatment. Moreover, the failure to present evidence contemporaneous to the accident raised an issue of causation.

Now, for those following 5102(d) cases, the Second Department has held that absent prima faice proof of lack of causation, gap in treatment is irrelevant. In addition and in citing Perl, the Second Department does not require treatment contemporaneous with the loss.

Critically, I think it is time for the Second Department to weigh in. This may not be the right case because the Plaintiff’s own evidence refutes a serious injury. But I think a surgery case where there is a gap in treatment or 3 or or more months elapsed prior to treatment occurring would be a good case to take up.

Out of scope IME doctor June 14, 2019

Halloran v Kiri, 2019 NY Slip Op 04769 (1st Dept. 2019)

I have been so focused on the Second Department case law on the issue, I totally neglected the First Department cases on the issue. In honesty, I did not think the First Department departed from the prior rule that a physician’s opinion goes to weight regardless of specialty. Wrong again.

” Moreover, appellants’ experts failed to show that they were qualified to opine on the cause of decedent’s death (Steinberg v Lenox Hill Hosp., 148 AD3d 612, 613 [1st Dept 2017]).” Steinberg said ” Plaintiffs’ expert was also not qualified to offer an opinion as to causation. He specializes in cardiovascular surgery, not neurology or ophthalmology. Moreover, he failed to “profess the requisite personal knowledge” necessary to make a determination on the issue of whether the perforation was responsible for plaintiff’s visual impairment “

Ask yourself if our favorite no-fault pediatricians Dr. Michael Tamburo or Dr. Hirsch are really competent to offer any opinions?

Cashing in on old settlements June 14, 2019

Seaside Rehabilitation v Allstate Ins. Co., 2019 NY Slip Op 50918(U)(App. Term 2d Dept. 2019)

“This action by a provider to recover assigned first-party no-fault benefits was settled in open court on August 2, 2007. Defendant did not pay the settlement amount, and a judgment was subsequently entered on June 21, 2016, pursuant to CPLR 5003-a. Plaintiff appeals from so much of an order of the Civil Court entered May 12, 2017 as granted the branch of a cross motion by defendant seeking to stay the accrual of no-fault statutory interest “between date of settlement and date of judgment” by providing that such interest would be tolled until August 23, 2016, the date of the filing of a motion by plaintiff to recalculate the interest. We deem plaintiff’s notice of appeal from that part of the order to be a premature notice of appeal, on the ground of inadequacy, from the subsequently entered judgment (see CPLR 5520 [c]).

Plaintiff correctly argues that the Civil Court erred in staying interest from the date of the settlement of the action to August 23, 2016. Once the case settled, defendant was obligated to pay the agreed-upon amount to plaintiff (see CPLR 5003-a) and “plaintiff, as the prevailing party, was not required to make a demand for the money” (B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see CPLR 5003-a [e]). Defendant did not demonstrate that plaintiff had prevented defendant in any way from paying the settlement amount (see ERHAL Holding Corp. v Rusin, 252 AD2d 473, 474 [1998]; Juracka v Ferrara, 120 AD2d 822 [1986]; Craniofacial Pain Mgt. v Allstate Ins. Co., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]). Therefore, the Civil Court erred in tolling the accrual of interest (see Craniofacial Pain Mgt., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]).”

This fits within the line of cases that the carrier, if they want to reduce interest, must enter a judgment and work off that judgment. This was not done in this case.

PPO based discovery June 14, 2019

North Val. Med., P.C. v Allstate Ins. Co., 2019 NY Slip Op 50904(U)(2d Dept. 2019)

This one was interesting.

(1) “A review of the record indicates that the Civil Court properly denied the branch of defendant’s motion seeking, pursuant to CPLR 3211, to dismiss the complaint. The affidavits and documents annexed to defendant’s moving papers failed to establish that the corporate plaintiff was a party to the PPO contract, dated October 1998, which states that it is between Emerth L. Coburn, M.D., as an “individual practitioner,” and MultiPlan.”

(2) ” Here, according to defendant, Dr. Coburn explicitly requested Multiplan to include within the scope of his individual PPO contract with Multiplan all bills submitted to [*2]Multiplan bearing plaintiff’s name and taxpayer identification number. Consequently, the Civil Court improvidently exercised its discretion in denying defendant’s alternate relief of compelling an EBT of Dr. Coburn, since defendant is seeking material and necessary evidence to support its defense, as defendant paid plaintiff’s claims in accordance with the provisions of the PPO contract. “

The other issue in the PPO chain is between the carrier and the third-party intermediary. Was that contract presented? We just have multiplan and the doctor individually.