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2106 again… April 30, 2009

In the world of appellate practice, there are three types of appeals you can take up. The first type of appeal involves the instance where you know you are going to lose, but there is some overriding interest which compels you to file and perfect the appeal. I think this is usually relegated to the criminal side of the arena or issues involving large monetary awards that need to be challenged. These are the shot in the dark appeals. In order to win this type of appeal, spin around three times, throw a dart, and see if you can hit the bulls eye.

The second type of appeal you could take up is one where you believe the law should be a certain way, and there is case law or other sources of law out there, which if favorably construed, could support your position. This is also the category of appeal where I think if you repeat yourself a few thousand times, you might get heard. This is probably where the Dan Medical line of cases came from. I also believe that this is how the “AB v. Liberty” line of cases and the “old” Appellate Term, Fogel line of cases eventually died a well deserved death at the Appellate Division.

And then there is the third type of appeal. This is the one where the law is established, the facts are properly presented to the lower court and, for whatever reason, the lower court chooses to depart from settled precedent.

And now…
St. Vincent Med. Care, P.C. v Mercury Cas. Co., 2009 NY Slip Op 50810(U)(App. Term 2d Dept. 2009)
http://www.nycourts.gov/reporter/3dseries/2009/2009_50810.htm

In this case, Defendant moved for summary judgment based upon a prima facie showing that the contested services lacked medical necessity. There was approximately $6,000 in disputed billing, involving all types of modalities of treatment. The fourth cause of action, which was not disputed, involved a $71.49 office visit, if memory serves correct.

Plaintiff cross-moved and opposed the underlying summary judgment. Plaintiff, in opposition to Defendant’s motion argued that: (Issue #1) a business record predicate was not set forth in Defendant’s moving papers; (Issue #2) the denials were not timely and properly mailed; and (Issue #3) the services were medically necessary. The Appellate Term, for the first time, commented on Issue #1, finding that Defendant’s papers set forth a business record predicate for the admission of the denials into evidence. Those who have followed the law know that the Appellate Division, Second Department, has ruled on this issue, albeit the last time in 2006 and the first time 2004.

Issue #2 was quickly disposed of since the affidavit that was presented has previously been held to adequately describe the mailing procedure.

Issue #3 is the reason this case went up the appellate ladder. Plaintiff, in her opposition papers, presented an affirmation of Dr. Zakharov. Upon a search of the Office of Professional Responsibility (OPR) website, it was learned that Dr. Zakharov was the President of this corporation. CPLR 2106 expressly disallows a party to “affirm” to the truth of matters set forth in the litigation, and at least three cases previously held that a member of a business organization who is a party to the litigation may not use the CPLR 2106 affirmation process.

A proper objection along with the printout of the OPR site were set forth in Defendant’s reply papers. Incidentally, some have argued (and there was merit to this argument) that the OPR record needed to be certified. CPLR 4518(c). I think we can all agree that after Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co. 2009 NY Slip Op 00351 (2d Dept 2009), this objection is palpably without merit.

Plaintiff’s papers were properly excluded. Having failed to raise a triable issue of fact, summary judgment was awarded to Defendant.

45-days…and then what? April 28, 2009

Upon a medical provider’s or Claimant’s violation of the 30-day rule or 45-day rule, and an insurance carrier’s timely denial thereto, what happens if a Plaintiff/Claimant subsequent to this denial proffers a reasonable justification for the late submission?

It would appear that the Carrier would have a real problem, since its only defense to payment of the otherwise valid claim would not be sustainable.

Such appears to be the case in the recent Appellate Term matter of:

Bronx Expert Radiology v Clarendon Natl. Ins. Co
.
2009 NY Slip Op 50747(U)(App. Term 1st Dept. 2009)

In Bronx Expert, a triable issue of fact was set forth as to the excuse for the late submission. Should the excuse for a late submission be deemed reasonable and sustained at trial or even on summary judgment, as a matter of law, then the carrier will have to pay the entire bill.

I suspect that the shrewd carrier, upon deciding to deny a bill for a 30-day rule or 45-day rule violation, would also adjust the bill from the standard medical management perspective. Accordingly, should the 30 or 45 day rule denial not hold, then a substantive defense could still be interposed.

My car was not there damnit! April 23, 2009

Mid Atl. Med., P.C. v Harleysville Worcester Ins. Co.
2009 NY Slip Op 50736(U)(App. Term 2d Dept. 2009)

One of the biggest problems medical providers dealing with assigned claims have is defending against certain coverage issues. This usually involves in hit and run cases, “it never happened cases” and even causation defenses, predicated upon a degeneration claim.

If a carrier’s papers are satisfactory on its motion for summary judgment and sufficient to shift the burden to the Assignee provider, then the provider many times needs to procure the assistance of its Assignor. And we all know the effort and sheer impossibility it many times takes to locate the Assignor.

That is what appears to have happened here. I would opine that this happens frequently on the “my car did not make contact with that person” or “It was not me” defense.

Here are the facts:

“In support of its motion, defendant annexed affidavits from its insured and its insured’s wife in which they stated that although they own a 1995 Oldsmobile, they live in Fredonia, New York and neither they nor their vehicle was involved in an accident in Brooklyn. They further stated that they are the only individuals who have access to their vehicle and that they have not been to Brooklyn in over 30 years.”

Plaintiff could not or did not procure an affidavit or other admissible proof to raise an issue of fact. Summary judgment was granted to Defendant.

Not only did Plaintiff lose, but here comes the real rub.

Plaintiff Assignor, who was probably a pedestrian, will probably be collaterally estopped from contesting in his or her BI or even UM case that he or she was hit by the 1995 Oldsmobile. This is classic Lobell.

I guess my thought, and you can tell me if I am wrong, is that you need to be really careful when litigating certain coverage issues in the context of an assigned no-fault case. You just never know when a potential malpractice claim may be brought by the Assignor, who is in privity with the Assignee, when that Assignor learns that he or she is collaterally estopped from bringing or succeeding on his or her BI or UM case.

I would go so far as to say that the minute a coverage issue that can really hurt an Assignor arises in an assigned no-fault action, execute a stip of discon. If the Defendant will not consent, then move to discontinue without prejudice.

Ortho Med Supply – more than meets the eye April 23, 2009

The recent trend in Appellate Term jurisprudence involving cases with (u) or Misc (a) cites is to take the approach that the Appellate Division, Second Department takes in terms of reasoning a case. The Court will cite to other precedent which, on their facts, should guide the reader as to what the law is in the matter sub judice. The other trend is for the courts to deem certain challenges “unpreserved” or unpreserved, yet without merit if preserved.

Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co.
2009 NY Slip Op 50731(U)(App. Term 2d Dept. 2009)

If you read the facts of this case, you would think this is another “medical necessity” summary judgment motion that another carrier interposed. Yet, if you read the record on appeal, you would see something different.

This case involved a denial that on its face was dated one month previous to its generation date. Therefore, the denial was dated prior to the receipt date of the bill. The carrier, in their motion for summary judgment, presented an affidavit from someone with personal knowledge that this was a scrivener’s error and based upon a review of the computer records and the paper file, the denial was generated one month following the date set forth on the denial. The affidavit then went on to state that it was mailed in the manner consistent with properly dated denials. Thus, it was mailed on the date it should have been dated or the next business date, in accordance with the carrier’s standard mailing procedures.

Plaintiff opposed the motion and cross-moved, arguing that the denial was fatally defective. The carrier prevailed on its motion and the plaintiff appealed.

On appeal, the plaintiff then went on to argue, besides its preserved argument, that the denial could not be considered a business record since it had the wrong date on it. If a denial is not deemed a business record, it may not be considered by the Court. Hospital v. Elrac and Montifiore v. Liberty stand for those propositions of law.

The carrier argued that a proper foundation was laid and any defects in the “business record” would go to the weight – not the admissibility – of the business record.

Following consideration of all the proofs, the Appellate Term affirmed the grant of summary judgment to the carrier.

Now if only the entire procedural history of this whole case were set forth in the opinion, it might be worth something more than a (u) cite.

But what I can say is that if a defect is not numerous and you spell it out in a decent affidavit, the Appellate Term will give you a pass.

Pine Hollow – dead April 17, 2009

It is nice to see the death of a case, which was improperly decided in the first instance. In many ways, it is a vindication to those of us who believed Pine Hollow created a scenario that left the business record rule, naked and without potency. Caruthers pretty much fixes up the mess Pine Hollow created.

But, the better question is whether one really needs to satisfy CPLR 4518(a) to make a prima facie case?