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How to defeat a Lack of medical necessity motion based upon a peer review March 4, 2009

I encounter on many levels summary judgment motions predicated upon the defense that a service lacks medical necessity in accordance with a peer review which finds that a given service is medically unreasonable. Invariably, the motion only annexed the peer review.

The opponent to the motion now has to scramble to find the documents the peer reviewer examined, and then the opponent needs to retain an expert to review these records in order to conclude that the services were medically necessary.

I think we missed a step here. Why was the movant able to get away with attaching a FILE based review without annexing the file? Are we to throw caution to the wind and blindly trust the peer doctor’s interpretation of the plaintiff’s records? Indeed, the way plaintiffs win trials is through poking holes in the peer doctor’s medical rationale viz a vi the plaintiff’s medical records. Conversely, a defendant faced with a treating doctor will do the same thing to beat him or her.

Perhaps the better question is why, mister plaintiff did you not object to the defendant’s putting the cart before the horse through his making a summary judgment motion without any documentaty evidence to support it?

Maybe the question that really needs to be answered is why we allow ourselves to accept shoddy practices and mediocrity under the guise of “volume”?

The Appellate Division, in 2006 believed that what has now been the norm in no-fault medical necessity motion practice was unsatisfactory in an analagous scenario and found that the movant who pulled the above stunt was unable to prima facie demonstrate his defense to the action.

In Cariddi v. Hassan 45 AD3d 516 (2d Dept. 2006), the Appellate Division held the following:

While Dr. Katz provided objective medical evidence in support of his diagnoses with respect to the plaintiff’s complaints regarding **427 her ankle and lumbosacral spine, his only basis for concluding that the plaintiff’s complaints regarding her hip were “unrelated” to the subject accident was that “doctors’ notes reviewed do not indicate any problem to the left hip following this incident of 09/17/04 [and a]n MRI of the left hip and pelvis was not performed until 01/03/06 which is more than one year after the accident.” However, Dr. Katz did not attach any of the prior medical records to his report, and the defendants otherwise failed to submit any such records in support of their motion, as they were certainly entitled to do (see Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 47 n. 1, 789 N.Y.S.2d 281; Pagano v. Kingsbury, 182 A.D.2d 268, 271, 587 N.Y.S.2d 692). Therefore, Dr. Katz’s report, standing alone, failed to establish, prima facie, that the plaintiff’s alleged hip injury was unrelated to the subject accident

Of course, one caveat needs to be stressed. The failure to object to a moving party’s reliance on materials not before the court is waived if not properly objected to. Unobjected to hearsay is competent evidence. Use it or lose it. Oh, and this does not apply to IME based motions.

Validity of EUO, Appellate Term, 2d Dept: Take two February 26, 2009

The Appellate Term, Second Department seems to be all over the place with the “EUO” cases. The analysis is really needlessly strained and hard to follow. The latest case demonstrates this… Two parts of the opinion are set forth herein.

Great Wall Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co.

2009 NYSlipOp 50294(U)(App. Term 2d Dept. 2009)

Plaintiff asserts that the EUO scheduling letters were ineffective since they were not sent to plaintiff but rather to an attorney. However, since defendant’s counsel received a letter from said attorney a short time before the initial EUO scheduling letter was mailed advising counsel that the attorney represented plaintiff with respect to EUO requests which were already pending, such a contention lacks merit

A review of the record indicates that defendant established that the insurance policy in effect when the EUOs were sought contained an endorsement authorizing verification by EUO. Inasmuch as the accident in which plaintiff’s assignor was allegedly injured occurred after the April 5, 2003 effective date of the emergency first amendment to revised Department of Insurance Regulation 68, contrary to plaintiff’s contention, defendant was not required to schedule the EUO within 30 days of receiving plaintiff’s claims but only within a reasonable time thereafter. Since the date selected for the EUO was reasonable and plaintiff did not appear for the scheduled EUO, defendant’s motion for summary judgment should have been granted since the action was premature

First, while I agree that in principle an EUO scheduling letter, or any other correspondence, should only be sent to an attorney representing the Party to be deposed, when one is on notice of the same, the regulations do not agree with that proposition of law. The regulations require that the notices be mailed to the injured person and his or her authorized representatives. I am not sure solely sending it to the attorney complies with the regs. But that part of the opinion does not necesarily trouble me.

It is the second part. Why does the App. Term, 2nd Dept keep saying that the failure to attend EUO’s makes the action premature? The failure to attend an EUO is a policy violation – albeit shceduled as additional verification requests – and the claim must be denied. The denial must be within the latter of 30 days of the last EUO appointment or date of receipt of the bill. This is the law. I also do not understand why the App. Term is saying that upon one failure to attend an EUO, the claim is still premature? We shall see how the Court fixes this, or if the App. Div is going to have straighten this out, similar to Fogel and AB Liberty…

“Kids, dont try this at home” February 26, 2009

I got that line from another blogger. That comment refers to a case that is anything but remarkable.

Although there was a long and very thoughtful dissent on what the probably should be, the majority made two salient points.

Continental Med., P.C. v Mercury Cas. Co.
2009 NYSlipOp 50234(U)(App. Term 2d Dept. 2009)

“Although chiropractors may not affirm pursuant to CPLR 2106 this defect was waived since plaintiff failed to object in the court below. As a result, the IME report proffered by defendant established defendant’s prima facie entitlement to summary judgment on the ground that the services rendered to plaintiff’s assignor were not medically necessary”

“In opposition, plaintiff proffered an unsworn medical report which was “dictated but not read.” Thus, it was of no probative value. Inasmuch as plaintiff failed to rebut defendant’s prima facie case, defendant’s motion for summary judgment dismissing the complaint should have been granted”

I think, and this is just me, but New York should follow the Federal and New Jersey model where a party can submit a “certification”, which would have the same force and effect as an affidavit. In the criminal realm, this is done all the time. But the law is what it is…

"Kids, dont try this at home" February 26, 2009

I got that line from another blogger. That comment refers to a case that is anything but remarkable.

Although there was a long and very thoughtful dissent on what the probably should be, the majority made two salient points.

Continental Med., P.C. v Mercury Cas. Co.
2009 NYSlipOp 50234(U)(App. Term 2d Dept. 2009)

“Although chiropractors may not affirm pursuant to CPLR 2106 this defect was waived since plaintiff failed to object in the court below. As a result, the IME report proffered by defendant established defendant’s prima facie entitlement to summary judgment on the ground that the services rendered to plaintiff’s assignor were not medically necessary”

“In opposition, plaintiff proffered an unsworn medical report which was “dictated but not read.” Thus, it was of no probative value. Inasmuch as plaintiff failed to rebut defendant’s prima facie case, defendant’s motion for summary judgment dismissing the complaint should have been granted”

I think, and this is just me, but New York should follow the Federal and New Jersey model where a party can submit a “certification”, which would have the same force and effect as an affidavit. In the criminal realm, this is done all the time. But the law is what it is…

A conflict at the worst possible time for interest February 20, 2009

I will save the commentary for another time, or another blog. My thoughts of the self-destructive behavior of attorneys probably belongs in an article I should write for the “journal of sociology”, which academics publish from time to time. I almost remember a theory in one of my criminology classes that was called “labeling theory”. In short, people live up to their labels. This is no exception.

On the law, the Appellate Division has now held that interest commences from the filing of a lawsuit if a bill is denied. Thus, all one needs to do is demonstrate that a denial was mailed before a lawsuit is commenced and pre-suit interest has just disappeared. This is completely in variance with the regulations which state that interest will toll upon issuance of a denial and re-commence after a suit or arbitration is commenced.

Thus assume a 2003 date of service that was submitted at that time. The bill is denied in 2007 and suit is commenced in 2009. The regulations, as I always understood them, stated that Applicant would be entitled to 4 years interest. The clock would then stop until 2009. In 2009, the clock would re-commence.

The Appellate Division has now held, in the above hypothetical, that the 2007 denial now wipes out all pre-suit interest. It is an interesting interpretation. From a policy standpoint, it makes sense since quick resolutions of disputed bills are the purported hallmark of no-fault. We all know that is false, in practice. But taken to its logical apex, the decision remains faithful to that intent.

The problem is that text which is clear on its face needs to be interpreeted as written, even in the face of a legislative intent that says otherwise. Be it as it may, this was a gift nobody probably saw coming.

Now to the central holding of East Acupuncture:

East Acupuncture, P.C. v Allstate Ins. Co.
2009 NY Slip Op 01191 (2d Dept. 2009)

“Accordingly, the Appellate Term properly determined that interest pursuant to Insurance Law ยง 5106(a) did not begin to accrue on the claims that were untimely denied by Allstate until East Acupuncture filed its complaint. Thus, the Appellate Term properly reversed the order of the Civil Court and remitted the matter for the new interest calculation. “