The causal relation defense – yay and nay January 25, 2009

First as to yay – an “APPEAL AND OPINION” from the First Department
Delfino v Luzon
2009 NY Slip Op 00317 (1st Dept. 2009)

The defense radiologist’s review of an MRI film of plaintiff’s left shoulder, taken 17 days after the accident, showed normal osseous structures, labrum, deltoid muscle, and biceps tendon, and no rotator cuff [*2]injury, tendinitis, osteochondral defect or fracture. There was some fluid in the acromioclavicular joint, which the radiologist believed would “resolve without intervention due to the absence of any ligamentous, osseous, or tendinous etiology.” An MRI film of plaintiff’s lumbar spine, taken six weeks after the accident, was normal, other than dessication and bulging at the L5 transitional S1 vertebral level, which resulted from a condition with which plaintiff was born. The radiologist stated that the dessication could not have occurred during the interval between the accident and the examination, but rather was “indicative of pre-existing, degenerative change likely associated with the congenital variant.” Similarly, the bulging was “related to ligamentous laxity” and was “degenerative in nature.” Notably, there were no osseous, ligamentous, or intervertebral disc changes of recent or post-traumatic origin.

(Plaintiff expert does not address degenration – only 5102[d] factors – i.e., normal ROM, etc.)

Now this is where Plaintiff went wrong:

“More importantly, plaintiff’s expert did not even address, let alone rebut, the objectively substantiated findings of defendant’s experts that plaintiff’s conditions are congenital and degenerative, and therefore did not raise a triable issue of fact as to causation (see Mullings v Huntwork, 26 AD3d 214, 216 [2006]). In addition, plaintiff’s expert did not attempt to reconcile his conclusory assertion that the shoulder surgery was necessitated by accident-related injuries with the MRI report describing the shoulder as “unremarkable” other than “fluid and/or soft tissue inflammation surrounding the acromioclavicular joint.””

Now as to Nay – an “APPEAL AND OPINION” from the Second Department

Allstate’s counsel argued, without a supporting affidavit from a medical expert, that these code-defined conditions could not have been related to the automobile accident or, at least, raised an issue of fact as to whether the conditions arose from the accident.

This Court determined that in applying Central General Hospital, “the question of whether an injury was entirely preexisting (i.e., not covered) or was in whole or in part the result of an insured accident (i.e., covered) is hybrid in nature, and cannot be resolved without recourse to the medical facts” (id. at 19 [emphasis added]).

While the existence of the diagnostic codes and the clinical definitions of Hafford’s treated medical conditions may not be in dispute, the question of whether such conditions were wholly unrelated to his automobile accident or not exacerbated by the accident “cannot be resolved without recourse to medical facts” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19). Here, Allstate’s counsel, in his affirmation, failed to set forth any basis on which to conclude that he was a medical expert qualified to render an opinion on causality (see Contacare, Inc. v CIBA-Geigy Corp., 49 AD3d 1215; Hofmann v Toys R Us, NY Ltd. Partnership, 272 AD2d 296). No physician or other medical expert affidavit was included in Allstate’s submissions to explain the codes, the diagnoses and, most importantly, the causation or exacerbation, or lack of causation or exacerbation of conditions, in relation to the subject automobile accident. The mere deciphered codes, in and of themselves, are insufficient.

The remaining coded conditions, which on their face might appear unrelated to an automobile accident, could conceivably represent exacerbations of pre-existing conditions in the absence of expert medical opinion attesting otherwise. Exacerbations of pre-existing conditions are covered by the No-Fault Law (see Wolf v Holyoke Mut. Ins. Co., 3 AD3d 660, 660-661; Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 18).

Allstate’s submissions therefore suffer from an inescapable paradox. If the diagnostic codes pertain to conditions unrelated to Hafford’s accident, Allstate was required to submit an affidavit from a medical expert (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19). If, on the other hand, the diagnostic codes represent conditions related to the accident, then Allstate was required to either pay the no-fault claim, or deny payment on other grounds, within 30 days of receiving the demand.

So here you go: You need an affidavit based upon the medical facts to prima facie demonstrate lack of causation. In opposition to a properly supported motion, you need an equally specific affidavit.

Estoppel through Box #16 January 25, 2009

Some practioners called Box #16 the trap box. Hit independent contractor and you are dead. I always said wait a second. Just resubmit the bill, give a justification and you should get around the 45-day rule. However, do not make the mistake too often or the 45-day rule may become absolute. I also have said that on certain fee code issues, i.e., the “BR” codes, the same rule applies. Resubmit with the pertinent documentation and you should be alright.

Yet, there was always a displeasure I has towards Box #16 issues when the Claimant decided to fight the independent contractor issue through affidavit. The reason, as the Appellate Term said, was that all other defenses would be waived.

A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co.
2008 NYSlipOp 28528 (App. Term 2d Dept. 2008)

“In the case at bar, the claim forms at issue state that the treating professionals were independent contractors. Contrary to plaintiff’s contention, the allegation that said treating professionals were actually employees, and that the claim forms contain misinformation, is irrelevant. Plaintiff did not submit bills that entitled it to payment, and correction of the defect involved herein should not be permitted once litigation has been commenced”

The Court then said something which I found fasciniating and I think can be used in a litany of situations:

“An insurer should be able to rely on the assertions in the claim form, and, in keeping with the aim of “provid[ing] substantial premium savings to New York motorists” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]), should be able to handle a claim for services rendered by an independent contractor accordingly without engaging in further consideration of the claim. An insurer is not obliged to issue a denial in order to assert the non-precludable, independent contractor defense. Consequently, if a provider were to be permitted to demonstrate during litigation that the claim form was incorrect and services were, in fact, rendered by an employee, not only would the insurer, which exercised its option not to expend further efforts to defend a facially meritless claim, have lost its opportunity to conduct meaningful claims verification, but also its decision not to issue a denial would result in its preclusion from introducing most defenses”

The Court offers some guidance as to the business records exception January 25, 2009

V.S. Med. Servs., P.C. v Travelers Ins. Co.
2009 NY Slip Op 50048(U) (App. Term 2d Dept. 2009)

Plaintiff offered the testimony of its former employee and sought the admission of, inter alia, its purported claim forms into evidence. Defendant objected on the ground that said documents were hearsay and that plaintiff failed to lay a foundation for their admission pursuant to CPLR 4518.

While plaintiff produced a witness to testify regarding the claim forms plaintiff sought to have admitted into evidence, because said witness did not testify at all as to the generation of such claim forms, they were not admissible as business records

Written opposition – the key to beating people on procedural defects January 25, 2009

Perhaps one of the most obnoxious things in this area of law is that firms attempt to “amplify” their respective positions through oral argument. This occurs in two scenarios: (1) A party orally argues a motion without written opposition; and (2) A party amplifies their position during oral argument through raising new objections not raised in their papers.

Dave Barshay said it best in an analogous situation: “Unobjected to hearsay is competent evidence”

Similarly, unobjected to procedural defects render incompetent evidence competent. There are certain courts that routinely entertain these type of oral objections.

With that in mind, let us look at:

Complete Orthopedic Supplies, Inc. v State Farm Mut. Auto. Ins. Co.
2009 NYSlipOp 29014 (App. Term 2d Dept. 2009)

The Civil Court held that defendant failed to establish that its denial of claim forms were timely mailed because the notary public’s jurat, on the affidavits of mailing executed by defendant’s claims support services supervisor and the president of the courier service utilized by defendant, did not indicate the year in which the affidavits were signed. However, this technical [*2]defect is of the type which a court should disregard since it does not prejudice a substantial right of a party, particularly, where as here, plaintiff raised no objection thereto.

I shall say no more.

CPLR 3211(a) – you may cure pleadings in opposition to a preanswer motion January 25, 2009

Haire v Bonelli
2008 NY Slip Op 10250 (3d Dept. 2008)

“When courts consider a motion under CPLR 3211, pleadings are afforded a liberal construction, with all alleged facts accepted as true (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The court may consider affidavits submitted to remedy any defects in the complaint in determining whether plaintiff has a cause of action, per CPLR 3211 (a) (7), not whether he has stated one (see id. at 88). Under CPLR 3211 (a) (1), dismissal is warranted if documentary evidence conclusively establishes a defense as a matter of law (see Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]; Leon v Martinez, 84 NY2d at 88).”