Mr. Ortega, why did you lie to us?

Ortega v Healthcare Servs. Group, Inc., 2018 NY Slip Op 07568 (4th Dept. 2018)

(1) “Plaintiffs commenced this action seeking damages for injuries Rose Ortega (plaintiff) allegedly sustained as a result of a slip and fall that occurred at a facility, which was maintained by defendant. Following the damages phase of a bifurcated trial, the jury awarded plaintiff $4,200 for past pain and suffering, $3,300 for past lost wages, and $2,500 for past medical expenses. Plaintiffs moved to set aside the verdict as against the weight of the evidence on the issue of damages, and for a new trial thereon (see CPLR 4404 [a]).”

(2) “Defendant appeals from an order that, inter alia, granted the motion and ordered a new trial on damages unless defendant stipulated to increase the award for past pain and suffering to $300,000”

(3) “Here, the central issue at the damages trial was whether plaintiff’s claimed shoulder and cervical spine injuries were causally related to the subject fall, or if they resulted from unrelated prior motor vehicle accidents or other unrelated incidents or conditions. Given the conflicting evidence on that issue, plaintiff’s selective and incomplete disclosure of her health history to her healthcare providers and the examining physicians, and her inability to recall prior accidents and injuries during cross-examination, we conclude that the verdict on damages is not against the weight of the evidence because a fair interpretation of the evidence supports the jury’s determination that plaintiff’s shoulder and cervical spine injuries were unrelated to the subject fall and that the only injury sustained by plaintiff in the fall was a knee sprain.”

Shoulder surgery with physical therapy – valued at $550,000

Thompson v Toscano, 2018 NY Slip Op 07676 (1st Dept. 2018)

“$400,000 for past pain and suffering and $750,000 for future pain and suffering over 25  years…”

“The 29-year-old plaintiff was a passenger in a minivan involved in an accident with a vehicle owned and operated by the Toscanos. Plaintiff suffered a partial labral tear to the left shoulder, for which she underwent surgery, and had two courses of physical therapy. Plaintiff testified that she continued to suffer from intermittent pain and had a loss of range of motion to her left arm. Her surgeon opined that she might require further physical therapy and surgery in the future. After reviewing comparable injuries and awards, the trial court appropriately concluded that the amounts awarded by the jury were excessive and that the amounts of $300,000 for past pain and suffering and 250,000 for future pain and suffering constituted reasonable compensation for the injuries sustained “

1.5 million dollar scope and post-concussive injury

Castillo v MTA Bus Co., 2018 NY Slip Op 05134 (2d Dept. 2018)

“The plaintiff further testified: “[The bus driver] just slammed me to the back . . . of the bus . . . . She drove away at a fast pace and that’s when I landed all the way to the back of the bus in a seated down position with my left leg under me.” According to the plaintiff, her fall was of sufficient force that she lost consciousness.”

“During the damages trial, the plaintiff submitted evidence that she sustained disc bulges in almost the entirety of her cervical spine—C2-3 through C7-T1—resulting in diminished range of motion. She also submitted evidence that she sustained lumbar disc bulges at L3-4 and L5-S1, resulting in left S1 radiculopathy, meaning that a loss of function in the S1 nerve caused weakness and loss of sensation in the plaintiff’s left leg. Further, the plaintiff presented testimony that she sustained torn lateral and medial menisci in her left knee, requiring arthroscopic surgery, and that she may need a knee replacement in the future. Moreover, according to the trial testimony, the plaintiff developed postconcussive syndrome following the accident, and she will experience the effects of postconcussive syndrome for the rest of her life.”

“The jury found that the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d), and awarded her the sum of $500,000 for past pain and suffering and the sum of $1,000,000 for future pain and suffering over 10 years. On November 2, 2015, the Supreme Court entered a judgment in favor of the plaintiff and against the defendant in the principal sum of $1,500,000. The defendant appeals.”

“The award of damages for past and future pain and suffering did not deviate materially from what would be reasonable compensation”

Just let this one sink in for a little bit.

Failure to provide proof of Medicare status kills post-verdict interest

Torres v Visto Realty Corp., 2015 NY Slip Op 03255 (1st Dept. 2015)

“Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered April 4, 2014, which upon defendant’s motion, vacated the portions of the judgment, same court and Justice, entered November 21, 2013, awarding plaintiff interest, costs, and disbursements, and attorneys’ fees, if any, as calculated in the judgment, vacated all future interests, costs, disbursements, and attorneys’ fees, if any, accrued after entry of the judgment, ordered that no further interest, costs, disbursements and attorneys’ fees, if any, are to accrue, ordered plaintiff’s counsel to provide a Satisfaction of Judgment to defendant’s counsel and file an amended or modified judgment in the amount of $200,000 within 20 days, and ordered plaintiff to provide an affidavit that he is not and was not a Medicare recipient at the time of the accident within 30 days, unanimously affirmed, without costs.”

“Contrary to plaintiff’s contention, the court properly found that plaintiff did not satisfy his obligations under CPLR 5003-a, since he failed to provide defendant with the information relating to his Medicare status that defendant requires to comply with its reporting obligations under 42 USC § 1395y”

 

Another really intelligent appeal

When will certain Plaintiffs and their law firms realize that it is okay to occasionally lose in Civil Court.  Look at the the mess that  Plaintiff has now created for itself.  By the way, look at the bolded section of this opinion.  Why did you do this to yourself Mr. Five Boro?

Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 2011 NY Slip Op 51528(U)(App. Term 2d Dept. 2011)

“Plaintiff argues on appeal that, because defendant failed to attach a copy of the bill at issue in this case to its motion papers, the Civil Court could not have been able to identify the bill at issue and, thus, defendant’s motion should have been denied. This contention is without merit. The complaint in this matter identified the sole bill at issue (see CPLR 3013), and defendant attached the complaint to its motion papers as required by CPLR 3212 (b). Accordingly, there could not have been any question as to the identity of the bill which is the subject of this action.”

“[d]efendant was not relying on [the denials] for th[e] [hearsay] purpose. It is plaintiff’s burden, not defendant’s, to prove the elements of plaintiff’s cause of action. Defendant submitted the denial of claim form to show that it was sent and that the claim was therefore denied (see Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50991[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Quality Health Prods., Inc. v NY Cent. Mut. Fire [*2]Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Since defendant did not submit the denial of claim form for a hearsay purpose, defendant was not required to lay a CPLR 4518 foundation for its admissibility”

Peer doctor's testimony is sufficient to prima facie demonstrate a service's lack of medical necessity

Speciality Surgical Servs. v Travelers Ins. Co., 2010 NY Slip Op 50715(U)(App. Term 2d Dept. 2010)

“At trial, defendant’s doctor testified that the services provided were not medically necessary, and defendant also admitted into evidence a copy of the doctor’s affirmed peer review report, which was to the same effect. Both the doctor’s testimony and his report set forth a factual basis and medical rationale for his conclusion that the services rendered were not medical necessary. This evidence was not rebutted by plaintiff. In view of the foregoing, we disagree [*2]with the District Court’s finding that defendant failed to establish that the services provided were not medically necessary. Accordingly, the judgment is reversed and judgment is directed to be entered in favor of defendant dismissing the complaint.”

There was also a discussion regarding the validity of an assignment of benefits, but this issue was foreclosed due to the failure to address it during the claims stage.

I am more intrigued by the summary reversal of the District Court’s decision, after trial, that the services lacked medical necessity.  Of course, we have no idea whether the reversal was on the law (CPLR 4404[a]), in the exercise of the appellate court’s broad discretion, or based upon the appellate court’s opinion that the trial court’s decision was against the weight of the evidence.  Also, it is interesting how the court made mention of a peer report which, in effect, bolstered the peer doctor’s testimony.

I would hope, for the plaintiff’s bar, that the District Court sat solely as a proverbial “13th juror”, which would render the reversal as based upon the decision being against the weight of the evidence.  If this decision was based on the law, then it would appear that as long as the testimony is not conclusory and supported by admissible evidence, a trial court is bound to find for the defendant absent rebuttal testimony.

I would like to see the appellate courts evaluate more of these unrebutted medical necessity trial cases, before I come to any conclusions.

Peer doctor’s testimony is sufficient to prima facie demonstrate a service’s lack of medical necessity

Speciality Surgical Servs. v Travelers Ins. Co., 2010 NY Slip Op 50715(U)(App. Term 2d Dept. 2010)

“At trial, defendant’s doctor testified that the services provided were not medically necessary, and defendant also admitted into evidence a copy of the doctor’s affirmed peer review report, which was to the same effect. Both the doctor’s testimony and his report set forth a factual basis and medical rationale for his conclusion that the services rendered were not medical necessary. This evidence was not rebutted by plaintiff. In view of the foregoing, we disagree [*2]with the District Court’s finding that defendant failed to establish that the services provided were not medically necessary. Accordingly, the judgment is reversed and judgment is directed to be entered in favor of defendant dismissing the complaint.”

There was also a discussion regarding the validity of an assignment of benefits, but this issue was foreclosed due to the failure to address it during the claims stage.

I am more intrigued by the summary reversal of the District Court’s decision, after trial, that the services lacked medical necessity.  Of course, we have no idea whether the reversal was on the law (CPLR 4404[a]), in the exercise of the appellate court’s broad discretion, or based upon the appellate court’s opinion that the trial court’s decision was against the weight of the evidence.  Also, it is interesting how the court made mention of a peer report which, in effect, bolstered the peer doctor’s testimony.

I would hope, for the plaintiff’s bar, that the District Court sat solely as a proverbial “13th juror”, which would render the reversal as based upon the decision being against the weight of the evidence.  If this decision was based on the law, then it would appear that as long as the testimony is not conclusory and supported by admissible evidence, a trial court is bound to find for the defendant absent rebuttal testimony.

I would like to see the appellate courts evaluate more of these unrebutted medical necessity trial cases, before I come to any conclusions.

Liar as a matter of law

Acosta v City of New York,2010 NY Slip Op 02910 (2d Dept. 2010)

Pursuant to CPLR 4404(a), the trial court “may set aside a verdict . . . and direct that judgment be entered in favor of a party entitled to judgment as a matter of law.” A court may set aside a jury verdict as unsupported by legally sufficient evidence only if there is ” simply no valid [*2]line of reasoning and permissible inferences which could possibly lead rational [individuals] to the conclusion reached by the jury on the basis of the evidence presented at trial'” (Soto v New York City Tr. Auth., 6 NY3d 487, 492, quoting Cohen v Hallmark Cards, 45 NY2d 493, 499). In considering such a motion, ” the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant'” (Hand v Field, 15 AD3d 542, 543, quoting Szczerbiak v Pilat, 90 NY2d 553, 556).

Contrary to the plaintiff’s contention, viewing the facts in the light most favorable to him, there was no valid line of reasoning and permissible inferences which could possibly have led rational individuals to conclude, based upon the evidence presented, that the defendants were liable. In sum, the plaintiff’s version of the events was “manifestly untrue, physically impossible, or contrary to common experience, and such testimony should be disregarded as being without evidentiary value” (Cruz v New York City Tr. Auth., 31 AD3d 688, 690, affd 8 NY3d 825). We note that the record is replete with instances where the testimony and other evidence adduced by the plaintiff was manifestly untrue and tailored to avoid the consequences of previous statements made by him to disinterested nonparty witnesses. Accordingly, the Supreme Court should have granted that branch of the defendants’ motion pursuant to CPLR 4404(a) which was to set aside the verdict and for judgment as a matter of law.”

This is just bad.