Qualification of an expert April 1, 2017

Steinberg v Lenox Hill Hosp., 2017 NY Slip Op 02383 (1st Dept. 2017)

Yes, the general rule is that a physician can offer an expert opinion about a medical issue and that will be sufficient evidence to make a prima facie showing or to defeat a prima faice showing.  There is a tension on this issue where I am seeing that the exception to the rule is more true than the rule itself.

“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”

To appeal for the sake to appeal March 25, 2017

J.O.V. Acupuncture, P.C. v Amex Assur. Co., 2017 NY Slip Op 50347(U)(App. Term 1st Dept. 2017)

“This action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal, since defendant-insurer failed to establish the proper and timely mailing of the denial of claim form at issue (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564—565 [2005], lv denied 5 NY3d 713 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). The affidavit submitted by defendant to establish proof of mailing of the denial, identifying the affiant as an employee of nonparty Ameriprise Auto & Home [Ameriprise], lacked probative value, since affiant failed to show any relationship between Ameriprise and defendant, or any personal knowledge of the internal mailing practices and procedures of defendant during the pertinent period”

I always thought when a firm billed by the hour, the work product was supposed to be better.  #Alternativefacts not by Sean Spicer.

Summary judgment not unavailable under Etienne March 25, 2017

Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co., 2017 NY Slip Op 50345(U)(App. Term 1st Dept. 2017)

“Contrary to plaintiff’s contention, the proof submitted establishes that plaintiff’s bill for services in the amount of $1,495 was timely denied, inasmuch as the 30-day statutory period was tolled by defendant’s timely verification and follow-up requests (see 11 NYCRR 65-3.8[a][1]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]).”

Prior to Etienne, the First-Department held that the insurance carrier had to demonstrate the merit of its defense to stave off summary judgment.  Not so anymore.  The insurance carrier only needs to prove a timely disclaimer and legal merit to the disclaimer.



Ralph Medical modified March 25, 2017

Acupuncture Approach, P.C. v New York Cent. Mut. Fire Ins. Co., 2017 NY Slip Op 50340(U)(App. Term 1st Dept. 2017)

“We find no abuse of discretion in the grant of defendant’s motion to compel plaintiff to produce witnesses for deposition. Defendant preserved its excessive treatment and fee schedule defenses in the NF-10 denial of claim forms and demonstrated that the discovery sought was material and necessary to the defense of the action (see Megacure Acupuncture, P.C. v Lancer Ins. Co., 41 Misc 3d 139[A], 2013 NY Slip Op 51994[U] [App Term, 2d, 11th & 13th Jud. Dists 2013]; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d, 11th & 13th Jud. Dists 2012]). Unlike the situation in Ralph Med. Diagnostics, PC v Mercury Cas. Co. (43 Misc 3d 65 [2014]), the discovery sought herein is neither unreasonable nor duplicative of information already provided.”

**It appears the court backed off from Ralph Medical (which makes sense because once you place a case in court,  you are stuck with all of CPLR 3101).  The analogue to ralph (Arnica v. Interboro), the deposition demand was struck despite the provider not providing any discovery.  Clearly, someone woke up here.

The IME recollection issue March 25, 2017

Utica Acupuncture P.C. v Amica Mut. Ins. Co., 2017 NY Slip Op 50331(U)(App. Term 1st Dept. 2017)

“Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor’s nonappearance at scheduled independent medical examinations (IMEs). The conclusory affirmation of defendant’s IME doctor lacked probative value, since she failed to adequately state the basis of her recollection, some two years later, that the assignor did not appear on the scheduled IME dates”

(1) Personal knowledge

(2) Some procedure about no-shows being notated or a review of file and based upon procedure, affiant can affirmatively state the assignor failed to appear.