Blog

Stick a needle in me and call it acupuncture November 18, 2009

The Appellate Term in Great Wall Acupuncture, P.C. v GEICO Ins. Co. 2009 NY Slip Op 52308(U)(App. Term 2d Dept. 2009) once again held that the chiropractor fee schedule was all that a licensed acupuncturist was entitled to.  Sure, the court modified the lower court order on the basis that summary judgment should have been granted to plaintiff on the untimely denied portion of the complaint.  The Court also categorically rejected the reasonable geographic charge argument that plaintiff forwarded.  Finally, the court even affirmed the lower court’s granting of summary judgment to the non-moving party, Geico.

So, despite the order of the lower court being modified, I must offer my congratulations to (I am going to guess) Spina’s office on this one.

Getting off the topic, how many of you have done an EUO and asked the EIP whether the acupuncturist missed the meridian and caused the EIP to bleed?  I usually ask that question, and you would be surprised at the amount of affirmative responses I get.

The treating doctor must meaningfully disagree with the IME doctor’s findings and conclusions that prospective services are not medically necessary November 17, 2009

In the upcoming days, you will see the case of “Innovative Chiropractic v. Mercury Ins. Co” pop up on the most recent decision website.  Innovative Chiropractic will cite to “Pan Chiropractic v. Mercury Ins. Co”, and factually, it will read like “Bronze Acupuncture v. Mercury Ins. Co.”  You will also learn that the case was worth $168.00, and might wonder what I was thinking when I appealed it.  But most importantly, you will see that there are certain trends in the law that are now being created.  As a defendant, these trends are quite desirable; yet as a Plaintiff, these trends are clearly not the end of the world or anywhere near it.  This is all just another day in the land of New York no-fault.

Here it is: Innovative Chiropractic, P.C. v Mercury Ins. Co. 2009 NY Slip Op 52321(U)(App. Term 2d Dept. 2009)

The treating doctor must meaningfully disagree with the IME doctor's findings and conclusions that prospective services are not medically necessary November 17, 2009

In the upcoming days, you will see the case of “Innovative Chiropractic v. Mercury Ins. Co” pop up on the most recent decision website.  Innovative Chiropractic will cite to “Pan Chiropractic v. Mercury Ins. Co”, and factually, it will read like “Bronze Acupuncture v. Mercury Ins. Co.”  You will also learn that the case was worth $168.00, and might wonder what I was thinking when I appealed it.  But most importantly, you will see that there are certain trends in the law that are now being created.  As a defendant, these trends are quite desirable; yet as a Plaintiff, these trends are clearly not the end of the world or anywhere near it.  This is all just another day in the land of New York no-fault.

Here it is: Innovative Chiropractic, P.C. v Mercury Ins. Co. 2009 NY Slip Op 52321(U)(App. Term 2d Dept. 2009)

“signature on file” November 16, 2009

While not earth shattering, the matter of Richmond Hospital a/a/o Claudio v. State Farm (Sup. Ct. Nassau Co. Index # 22143/08 [Lally, J. 2009]) that I prevailed on is proof that the courts are heeding the Court of Appeals decision in holding that an Assignment of Benefits form bearing the legend “signature on file” may be challenged through timely and proper additional verification requests.  There are two things to observe in this decision.  First, the Court found that “signature on file” satisfied the “claimant’s notice burden where the carrier does not take timely action to verify the existence of an assignment of benefits.”  Second, the Court found Plaintiff’s argument that the Claimant was unable to sign the Assignment of Benefits because he was too severely injured to be without merit.

But here is what intrigues me I suppose.   What would happen if the AOB failed to state signature on file or contain any other indicia that it was signed?  We all know that it would not matter, since standing is not part of a medical provider’s prima facie case.  Yet, Justice Lally intimates otherwise.

Finally, as I have said numerous times – if the law were being written on a clean slate, I would tend to agree with the approach the majority of no-fault jurisdictions (everyone except for New York) take and  require a medical provider to prima facie prove: (a) Standing; (b) Performance of a medically necessary service; (c) Causal relation between the service and the loss; (d) Proper billing of the service; and (e) The bill being overdue when the action was commenced.  But, we are not writing on a clean slate.  We must therefore work within the framework that has been built in the last 15 years, lest we want to live in the late Mr. Rogers’ “Land of Make Believe.”

"signature on file" November 16, 2009

While not earth shattering, the matter of Richmond Hospital a/a/o Claudio v. State Farm (Sup. Ct. Nassau Co. Index # 22143/08 [Lally, J. 2009]) that I prevailed on is proof that the courts are heeding the Court of Appeals decision in holding that an Assignment of Benefits form bearing the legend “signature on file” may be challenged through timely and proper additional verification requests.  There are two things to observe in this decision.  First, the Court found that “signature on file” satisfied the “claimant’s notice burden where the carrier does not take timely action to verify the existence of an assignment of benefits.”  Second, the Court found Plaintiff’s argument that the Claimant was unable to sign the Assignment of Benefits because he was too severely injured to be without merit.

But here is what intrigues me I suppose.   What would happen if the AOB failed to state signature on file or contain any other indicia that it was signed?  We all know that it would not matter, since standing is not part of a medical provider’s prima facie case.  Yet, Justice Lally intimates otherwise.

Finally, as I have said numerous times – if the law were being written on a clean slate, I would tend to agree with the approach the majority of no-fault jurisdictions (everyone except for New York) take and  require a medical provider to prima facie prove: (a) Standing; (b) Performance of a medically necessary service; (c) Causal relation between the service and the loss; (d) Proper billing of the service; and (e) The bill being overdue when the action was commenced.  But, we are not writing on a clean slate.  We must therefore work within the framework that has been built in the last 15 years, lest we want to live in the late Mr. Rogers’ “Land of Make Believe.”