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Competent opinion of a specialist May 6, 2017

Bartolacci-Meir v Sassoon, 2017 NY Slip Op 03040 (1st Dept. 2017)

“The nonconclusory opinion of a qualified expert based on competnt evidence that a defendant departed from accepted medical practice and that that departure was a proximate cause of plaintiff’s injury precludes a grant of summary judgment in favor of the defendants (see Diaz v New York Downtown Hosp., 99 NY2d 542 [2002]; Cregan v Sachs, 65 AD3d 101, 108 [1st Dept 2009]). However, the affidavit must be by a qualified expert who “profess[es] personal knowledge of the standard of care in the field of [] medicine [at issue], whether acquired through his practice or studies or in some other way” (Nguyen v Dorce, 125 AD3d 571, 572 [1st Dept 2015] [pathologist not qualified to render opinion as to whether defendant deviated from the standard of care in the field of emergency medicine]; see also Atkins v Beth Abraham Health Servs., 133 AD3d 491 [1st Dept 2015] [osteopath not qualified to render opinion on treatment of a geriatric patient with diabetes and other conditions]; Udoye v Westchester-Bronx OB/GYN, P.C., 126 AD3d 653 [1st Dept 2015] [pathologist not qualified to render an opinion as to the standard of care in obstetrics or cardiology]; Mustello v Berg, 44 AD3d 1018 [2d Dept 2007] [general surgeon not qualified to render opinion as to gastroenterological treatment], lv denied 10 NY3d 711 [2008]).

Here, there is no indication that Dr. Befeler possessed the requisite background and knowledge to furnish a reliable opinion concerning the practice of gastroenterology (see Browder v New York City Health & Hosps. Corp., 37 AD3d 375 [1st Dept 2007]). While a gastroenterologist may well be qualified to render an opinion on a surgical procedure involving the gastrointestinal system, it cannot be said that a general surgeon is qualified to opine on any [*4]specialty simply because the specialist may eventually refer the patient for surgery. Indeed, Dr. Befeler averred only that his conclusion that both doctors “were negligent in failing to follow standard and accepted medical procedures” was based upon his “review of the above records, [his] education, years of training, and [his] forty year experience in the field of General Surgery.” Nowhere did the doctor set forth any experience in gastroenterology or detail the standard of care for that specialty. Moreover, the expert did not provide any detail as to what Dr. Scherl should have done other than refer plaintiff to a surgeon, which she did. While he referred to “further diagnostic testing,” he did not say what those tests would be.

Although plaintiffs correctly argue that a doctor may have the requisite knowledge to opine on a specialty outside his particular field (Joswick v Lenox Hill Hosp., 161 AD2d 352, 355 [1st Dept 1990]), here, their expert failed to say that he possessed such knowledge and to explain how he came to it. Further, he failed to set forth the standard of care allegedly violated. Thus, plaintiffs did not adduce the opinion of a qualified expert so as to rebut Dr. Scherl’s showing of her entitlement to summary judgment.”

Substantiation of diminishment of ROM May 6, 2017

Rose v Tall, 2017 NY Slip Op 02947 (1st Dept. 2017)

“However, his report is insufficient to raise a triable issue of fact because, on his initial examination, he found normal to near-normal range of motion, which did not qualify as a serious injury (see Eisenberg v Guzman, 101 AD3d 505 [1st Dept 2012]). Furthermore, on a more recent examination, that neurologist found a deficit in one plane and normal to near-normal range of motion in all other planes, and failed to explain the inconsistencies between his earlier findings of almost full range of motion and his present findings of additional deficits, rendering his opinion speculative (see Santos v Perez, 107 AD3d 572, 574 [1st Dept 2013]; Colon v Torres, 106 AD3d 458 [1st Dept 2013]). Plaintiff’s showing of relatively minor limitations was insufficient to sustain a serious injury claim”

How does one reconcile (1) Need for objective evidence to prove medical necessity of services; (2) A patients conditions waves and wanes; and (3) There is need to explain inconsistencies between patients initial and subsequent conditions.

MVAIC issues May 6, 2017

No timely notice of claim or leave to file a late notice of  claim

SML Acupuncture P.C. v MVAIC, 2017 NY Slip Op 50539(U)(App. Term 1st Dept. 2017)

(1) “MVAIC’s submissions in support of its motion for summary judgment established, prima facie, that there had been no timely filing of a notice of claim and that leave had not been sought to file a late notice of claim (see Insurance Law § 5208 [a],[c]), and, thus, a condition precedent to plaintiff’s right to apply for payment of no-fault benefits from defendant had not been satisfied”

(2)  “In opposition, plaintiff failed to raise any triable issue. MVAIC’s failure to timely deny the claim does not preclude it from asserting a lack of coverage defense”

Did not notify the police within 24-hours

Karina K. Acupuncture PC v MVAIC, 2017 NY Slip Op 50537(U)(App. Term 1st Dept. 2017)

Defendant MVAIC demonstrated entitlement to summary judgment dismissing this action for first-party no-fault benefits, having established that plaintiff’s assignor failed to comply with the statutory requirement that notice of the accident be given “to a police, peace, or judicial officer” within 24 hours of the occurrence (Insurance Law § 5208[a][2][A]). Defendant’s submissions include the notice of intent to make claim, which does not indicate when, if at any point, the underlying accident was reported to the police, and affidavits demonstrating that repeated requests were made to the assignor for proof that the accident was reported and that the assignor never provided such proof

Omega Diagnostic Imaging, PC v MVAIC, 2017 NY Slip Op 50568(U)(App. Term 1st Dept. 2017)

“The documentary evidence adduced at trial established that the assignor was not a covered person entitled to no-fault benefits from MVAIC because he failed to report the accident “to a police, peace or judicial officer” within 24 hours of the occurrence (Insurance Law § 5208[a][2][A]; Canty v Motor Veh. Acc. Indem. Corp., 95 AD2d 509, 511 [1983]; Pomona Med. Diagnostics, P.C. v MVAIC, 34 Misc 3d 131[A], 2011 NY Slip Op 52347[U][App Term, 1st Dept 2011]). Indeed, twelve days after the accident, the assignor responded to a question on the notice of intention to make claim form asking “when the accident was reported to the police,” by stating “no police w[ere] called” (cf. Matter of Country Wide Ins. Co. [Russo], 201 AD2d 368, 370 [1994]). Plaintiff failed to rebut this evidence by showing that the accident was, in fact, reported to the police within 24 hours or that it “was not reasonably possible to make such a report or that it was made as soon as was reasonably possible” (see Insurance Law § 5202[a][2][B]”

These are just not easy cases when the injured person seemingly goes out of his way or her way to make life miserable for their PI attorney.

45-day rule denial not sustianed May 6, 2017

Utopia Equip. Inc. v Chubb Indem. Ins. Co., 2017 NY Slip Op 50540(U)(App. Term 1st Dept. 2017)

“The affidavit of defendant’s claims adjuster failed to describe defendant’s “regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims” (Liriano v Eveready Ins. Co., 65 AD3d 524, 525 [2009]), and was inadequate to demonstrate that plaintiff’s bills were not timely received within the 45—day period (see SMB Med. P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 146[A], 2015 NY Slip Op 50719[U] [App Term, 1st Dept 2015])”

It really was not on consent May 6, 2017

Healthworx Med., P.C. v Auto One Ins. Co., 2017 NY Slip Op 50559(U)(App. Term 2d Dept. 2017)

The order itself was numbered.  Apparently, after the order was written and given to the judge, the numbers of the papers were crossed out and the order in its body said: “[b]oth sides agreed to the above and will not appeal this order.”  Out of a fit of rage, I appealed because it was not on consent and there was no appeal waiver.  Unless I am taking a plea in a criminal case or settling a civil matter, I never forfeit my right to appeal.  The right to appeal is something I cherish and am not afraid to exercise.  The attorney who appeared told me it was not on consent.  Interestingly, Civil Court (same judge as originally) implicitly saw the lack of logic of consenting to judgment absolute and denied the motion on the lack of reasonable excuse grounds.

The appeal (without costs) was not fruitful.  Just so you know, there was no bill for the Camp conference or appeal on this case.  The case is worth $500.00 and it will die a less than dignified death.  Put an asterisk next to this under the caption “weird things that happen in Civil Kings”.