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A physician's affirmation and a chiropractor's affidavit will prove the lack of medical necessity of medical equipment November 12, 2009

In our latest adventure to the Appellate Term, entitled  Exclusive Med. Supply, Inc. v Mercury Ins. Group, 2009 NY Slip Op 502273(u)(App. Term 2d Dept. 2009), we appealed a decision from the lower court that denied, outright, our motion for summary judgment.

This case centered around peer review doctors who rendered opinions finding that certain supplies lacked medical reasonableness.  Annexed to the peer reports were all of the documents that the peer doctors’ relied upon.  A proper affirmation from the peer review physician and an affidavit from the peer review chiropractor were procured, thereby placing the documents before the court.  A claim representative’s affidavit placed the denials into evidence and demonstrated the timely handling of the denials.  Importantly, and I cannot stress this enough, the documents the peer reviewers examined were annexed to the motion papers.

In opposition, Plaintiff made all of the arguments that one sees in this practice.  Those include: (a) The denials were not mailed; (b) The documents were not in admissible form; (c) The peer reviews constitute inadmissible hearsay; (d) The peer reviewers were not properly qualified as experts; and (e) Medical necessity cannot be adjudicated on a summary judgment motion and always creates an issue of fact.

The lower court believed that Plaintiff’s submissions were sufficient to deny our motion.  This necessitated an appeal and the instant decision.

I think this case is somewhat important because it cites to Pan Chiropractic v. Mercury and PLP Acupuncture v. Progressive, for the propositions that a peer hearsay challenge is generally without merit.  I also think the “expert witness” challenge lacks merit where the doctors state what their specialty is on the peer or IME reports and there is no evidence to demonstrate that the IME or peer reviewer is not what he or she purports to be.

An affidavit is not be admissible at trial – You knew this already November 8, 2009

Matter of New York Rezulin Prods. Liab. Litig. v Pfizer, Inc., 2009 NY Slip Op 07496 (1st Dept. 2009)

“There is no basis to disturb the court’s determination in favor of Duffy ( see Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992] ). At the hearing, Girardi called no witnesses on its own behalf to contradict the testimony of Duffy’s witnesses as to the existence of an oral one-third fee arrangement between the two firms. The court properly declined to consider affidavits by a witness who was not available for cross-examination in court ( see Seinfeld v. Robinson, 300 A.D.2d 208, 755 N.Y.S.2d 69 [2002] ).

I did not post this case not for its precedential value.  It is obvious.  I posted this case because if you recall at the CLE in Brooklyn that we gave, I stated that the reason you as a practitioner should make summary judgment motions is because you cannot cross-examine the underlying affidavits that support the motion.  However, should you be forced to go to trial, you will not be able to rely on an affidavit because it is not subject to cross-examination.  See, id.

Why does a Malella defense surive an untimely disclaimer, while a workers compensation defense doesn’t? November 8, 2009

In New York First Acupuncture, P.C. v. State Farm Mut. Auto Ins. Co., 2009 NY Slip Op 52217(u), the Appellate Term in the context of an improper incorporation defense stated again that:

“Plaintiff’s contention, that the defense of fraudulent incorporation must be asserted in a timely denial of claim form, is without merit (Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37, 38-39 [App Term, 2d & 11th Jud Dists 2007]).”

What is interesting, and I have stated this before, is that it seems illogical that a Workers Compensation defense requires a timely disclaimer in order to be preserved (Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 (2d Dept. 2009), while a Mallela styled defense is exempt from the timely disclaimer requirement of Ins. Law 5106(a).  Both of these defenses do not implicate coverage.  Rather, these defenses are based upon whether a party has standing to prosecute an action.  Compare 11 NYCRR 65-3.16(a)(12), with, 11 NYCRR 65-3.16 (a)(9).

A little consistency would be nice.

Why does a Malella defense surive an untimely disclaimer, while a workers compensation defense doesn't? November 8, 2009

In New York First Acupuncture, P.C. v. State Farm Mut. Auto Ins. Co., 2009 NY Slip Op 52217(u), the Appellate Term in the context of an improper incorporation defense stated again that:

“Plaintiff’s contention, that the defense of fraudulent incorporation must be asserted in a timely denial of claim form, is without merit (Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37, 38-39 [App Term, 2d & 11th Jud Dists 2007]).”

What is interesting, and I have stated this before, is that it seems illogical that a Workers Compensation defense requires a timely disclaimer in order to be preserved (Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 (2d Dept. 2009), while a Mallela styled defense is exempt from the timely disclaimer requirement of Ins. Law 5106(a).  Both of these defenses do not implicate coverage.  Rather, these defenses are based upon whether a party has standing to prosecute an action.  Compare 11 NYCRR 65-3.16(a)(12), with, 11 NYCRR 65-3.16 (a)(9).

A little consistency would be nice.

The chiropractor rate is all that an acupuncurist is entitled to November 5, 2009

The Appellate Term is starting to sound like a broken record.  Yet, each time they play the record it seems that the message is more emphatic.

In New Wave Acupuncture v. Geico, 2009 NY Slip Op 52211(u)(App. Term 2d Dept. 2009), the Court stated the following: “For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive.”

Note: The court as of this case and Ava Acupuncture v. Geico does not require the carrier to provide evidence as to why it chose to pay chiropractor fee schedule rate as opposed to another rate.  The chiropractor fee schedule amount is acceptable as a matter of law.  Period, the end.

Now, let’s assume that you are in a stipped in trial and the sole issue is whether or not the billing was in accordance with the “fee schedule”.  Based on New Wave Acupuncture v. Geico and  Ava Acupuncture v. Geico, this is what the defendant’s portion of the trial should look like:

Exhibit “A” [Comes in through stip]

(1) Denial of claim form with explanation of benefits

Exhibit “B” [Comes in as a government document through judicial notice Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co, 61 AD3d 13 (2d Dept. 2009)].

(2) Fee schedule with CPT 97810, 97811, 97813, 97814;

Exhibit “C” [Comes in as a government document through judicial notice Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co, 61 AD3d 13 (2d Dept. 2009)].

(3) Chiropractor conversion factor [5.78];

Exhibit “D” for identification:

(4) Shiny Sharpe brand Calculator

Exhibit “E” for reference: New Wave Acupuncture v. Geico and  Ava Acupuncture v. Geico

(5) Give copies to the Judge and Plaintiff’s counsel.

(6) Tell Plaintiff and judge: “No, I do not need to bring a claim rep.  This is why…”

(7) With calculator, take the relative value, multiply by the Region IV conversion factor of 5.78 and announce the result to the court.  If you want, read the portion of the fee schedule that tells the court that this is how you arrive at the compensable amount.  You will find this in the introduction section of the fee schedule.

Now, do this for each billed for code.  Does the amount you calculated match the amount paid on the denial of claim form?  If yes, go to next step.

(7) Motion for directed verdict.

(8a) If win smile

(8b) If lose APPEAL and do not forget to enter a judgment for costs and disbursements including the prospective marshal fee after the judgment is reversed without costs.  The without costs only refers to appellate costs.

(8c) Tell the marshal you want to enforce the $105 judgment you just entered.  See what the marshal  says.  I know first hand what you will be told.  But, insist that the marshal collects the judgment.  He is duty-bound to do this.  I guarantee you will have a check in the mail in no time.  One warning however: the next time you call that marshal, you will be told that you have the wrong number.  Don’t worry – there are plenty of marshals out there.