Limitations on medical record discovery December 1, 2017

Spencer v Willard J. Price Assoc., LLC, 2017 NY Slip Op 08456 (1st Dept. 2017)

“In this slip and fall action, plaintiff seeks to recover for orthopedic injuries allegedly sustained to her knees, neck, back and shoulder. Under the circumstances, the motion court did not improvidently exercise its discretion in denying defendants’ motion to compel discovery of over 20 years of disability records relating to other conditions (see Gumbs v Flushing Town Ctr. III, L.P., 114 AD3d 573 [1st Dept 2014]). By bringing suit to recover for her physical injuries, plaintiff waived the physician-patient privilege as to all medical records relating “to those conditions affirmatively placed in controversy” (Felix v Lawrence Hosp. Ctr., 100 AD3d 470, 471 [1st Dept 2012]), but the court reasonably found that she did not place in issue her entire medical condition, including her diabetic condition and high blood pressure (see Kenneh v Jey Livery Serv., 131 AD3d 902 [1st Dept 2015]; Gumbs at 574).”

My question whenever I read these cases is whether the BP pleaded loss of enjoyment of life, which implicitly allows a fishing expedition into the person’s medical history.  I pulled the pertinent part of the BP and it says as follows:

“The plaintiff may permanently suffer from the aforesaid injuries from its effects upon his (sic) nervous system and may limit her activities in his (sic) employment and her life.  Plaintiff may be restricted in her normal life and activities and may permanently require medical and neurological care and attention.”


Judicial notice of Supreme Court order in the reply brief December 1, 2017

K.O. Med., P.C. v Mercury Cas. Co., 2017 NY Slip Op 51614(U)(App. Term 2d Dept. 2017)

(1) “In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion and cross-moved for summary judgment. Defendant appeals from an order of the Civil Court, entered July 11, 2014, which denied defendant’s motion, finding that defendant had failed to establish the assignor’s nonappearances at the EUOs, and granted plaintiff’s cross motion. On the appeal, defendant has annexed to its reply brief a December 4, 2014 short-form order of the Supreme Court, Bronx County, in a declaratory judgment action and asks this court to take judicial notice of that order, in which the Supreme Court granted on default a judgment declaring that plaintiff herein and its assignor, among others, are not entitled to no-fault coverage for the accident that is at issue in the case at bar.

(2) Contrary to the determination of the Civil Court, plaintiff failed to establish its prima facie entitlement to summary judgment, as plaintiff’s cross-moving papers failed to establish either that defendant had not denied the claims within the requisite 30-day period or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law ” (failure to satisfy the post 2010 formulation for summary judgment prima facie)

(3) “Ordinarily, a reversal of this portion of the Civil Court’s order, standing alone, would result in the matter being remitted to the Civil Court for all further proceedings. However, as a court may take judicial notice “on appeal, of reliable documents, the existence and accuracy of which are not disputed” and, generally, “of matters of public record” (Brandes Meat Corp. v Cromer, 146 AD2d 666, 667 [1989]; see Headley v New York City Tr. Auth., 100 AD3d 700 [2012]), this court, having afforded plaintiff an opportunity to address the propriety of the Supreme Court’s short-form order, and as the challenges that plaintiff has raised thereto lack merit, declines to remit the matter and, in the interest of judicial economy, takes judicial notice of the Supreme Court’s superseding order, entered October 17, 2016, pursuant to the short-form order, granting defendant’s motion for the entry of a default judgment and declaring that plaintiff herein and its assignor are not entitled to no-fault benefits arising out of the accident at issue (see Headley, 100 AD3d at 701; Brandes Meat Corp., 146 AD2d at 667). As the Supreme Court’s order bars any subsequent proceeding between the parties in the Civil Court under the doctrine of res judicata (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), it sufficiently appears that a party other than plaintiff is entitled to summary judgment (see CPLR 3212 [b]). Accordingly, upon reversing the portion of the Civil Court’s order which granted plaintiff’s cross motion for summary judgment, we grant defendant summary judgment dismissing the complaint pursuant to the doctrine of res judicata” (Upon reversal, the case should be dismissed based upon res judicata)

Subpoena the records November 18, 2017

Porcha v Binette, 2017 NY Slip Op 08141 (4th Dept, 2017)

(1) After defendants gave notice that they intended to call Dr. Riegler as an expert witness at trial, plaintiff served a judicial subpoena duces tecum on the nonparties and defendants’ insurer seeking the production of various documents and materials. As relevant to these appeals, in paragraph two of the subpoena plaintiff sought production of all billing and payment records related to examinations performed by Dr. Riegler on behalf of all insurance companies and attorneys for the prior five years. Plaintiff sought such information to ascertain any possible bias or interest on the part of Dr. Riegler.

(2) The nonparties and defendants moved, inter alia, to quash the subpoena, and Supreme Court denied the motions in part. The nonparties and defendants now appeal. Contrary to the contention of the nonparties and defendants, the court properly denied those parts of the motions seeking to quash paragraph two of the subpoena. Plaintiff was entitled to the information to assist her in preparing questions for cross-examination of Dr. Riegler concerning his bias or interest (see Dominicci v Ford, 119 AD3d 1360, 1361 [4th Dept 2014]; see generally Salm v Moses, 13 NY3d 816, 818 [2009]).

When a doctor crosses the line November 18, 2017

Harris v Campbell, 2017 NY Slip Op 08112 (4th Dept. 2017)

(1) CPLR 3101(d)

“Contrary to plaintiffs’ contention, the court properly limited the testimony of one of plaintiff’s treating physicians. “CPLR 3101 (d) (1) applies only to experts retained to give opinion testimony at trial, and not to treating physicians, other medical providers, or other fact witnesses” (Rook v 60 Key Ctr., 239 AD2d 926, 927 [4th Dept 1997]). ” Where . . . a plaintiff’s intended expert medical witness is a treating physician whose records and reports have been fully disclosed . . . , a failure to serve a CPLR 3101 (d) notice regarding that doctor does not warrant preclusion of that expert’s testimony on causation, since the defendant has sufficient notice of the proposed testimony to negate any claim of surprise or prejudice’ ” (Hamer v City of New York, 106 AD3d 504, 509 [1st Dept 2013]). Here, one of plaintiff’s treating physicians did not provide any expert disclosure, and during trial he indicated that, in addition to being a medical doctor, he received a Ph.D. in biomechanical engineering and he often relies on his engineering background in his medical practice. Subsequently, that treating physician was asked some questions pertaining to biomechanics, and specifically was asked about the amount of force needed to cause a lumbar injury. We conclude that defendant’s objections to that line of questioning were properly sustained inasmuch as defendant did not receive sufficient notice that the treating physician relied on his engineering background to support his opinions and conclusions about plaintiff’s injuries (see generally id.). Indeed, plaintiffs made no attempt in response to defendant’s objections to point to any medical records or other documentation that would establish that defendant had such notice.”

(2) “We reject plaintiffs’ contention with respect to the photographs of plaintiff’s vehicle inasmuch as it is well established that “[p]hotographs showing no damage to a plaintiff’s vehicle are admissible to impeach a plaintiff’s credibility on the issue whether the accident caused the alleged injuries” (Tout v Zsiros, 49 AD3d 1296, 1297 [4th Dept 2008], lv denied 10 NY3d 713 [2008]). Furthermore, “even when liability is not at issue, proof as to the happening of an accident is probative and admissible as it describes the force of an impact or other incident that would help in determining the nature or extent of injuries and thus relate to the question of damages’ ” (Anderson v Dainack, 39 AD3d 1065, 1066 [3d Dept 2007])”

Mallela not supported November 17, 2017

Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 2017 NY Slip Op 08007 (2d Dept. 2017)

(1) “However, “[a] provider of health care services is not eligible for reimbursement under section 5102(a)(1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York” (11 NYCRR 65-3.16[a][12]). “State law mandates that professional service corporations be owned and controlled only by licensed professionals” (One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740; see Business Corporation Law §§ 1503[a]; 1507, 1508). Thus, an insurance carrier may withhold payment for medical services provided by a professional corporation which has been “fraudulently incorporated” to allow nonphysicians to share in its ownership and control”

(2) “Thus, this evidence did not demonstrate, prima facie, that Anikeyev exercised dominion and control over the defendants and their assets and shared the risks, expenses, and interest in their profits and losses, or that he had a significant role in the guidance, management, and direction of their business (see Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 150 AD3d at 201). Moreover, even assuming, as the plaintiffs do, that the presence of the forfeited funds in the defendants’ bank accounts demonstrated some level of control by Anikeyev over the bank accounts, such control could not, on its own, support a finding that he owned and controlled the defendants ”

It is interesting that the regulation (65-3.16[a][12]) is limited to the situation where the medical provider is “controlled” by an ineligible professional.  The evidence, which various arbitrators, master arbitrators and the First Department have ruled upon, does not conclusively support this showing.