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

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.

Pine Hollow – dead

It is nice to see the death of a case, which was improperly decided in the first instance. In many ways, it is a vindication to those of us who believed Pine Hollow created a scenario that left the business record rule, naked and without potency. Caruthers pretty much fixes up the mess Pine Hollow created.

But, the better question is whether one really needs to satisfy CPLR 4518(a) to make a prima facie case?

The Court offers some guidance as to the business records exception

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

Prima facie: schizophrenia from the Appellate Term

Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co.
2008 NY SlipOp 52046(U)(App. Term 2d Dept. 9th and 10th Jud. Dis. 2008)

I have been waiting for the day when a Henig Hospital case with the famous Hospital Receivable’s third-party billing affidavit (which we all know is insufficient to lay a proper foundation for entry into evidence of the billing forms) to be evaluated by the Appellate Term, Second Department.

Let me explain. The famous Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 (2d Dept. 2004) case is a Appellate Division, Second Department case, which involved a Henig third-party biller affidavit. The Apppellate Division, as we all know, said that a prima facie case consists of submission of a claim form, and proof that the bill is overdue. Therefore, Mary Immaculate was granted summary judgment.

Here, the Appellate Term today ducked the prima facie issue. The Court said that the issue is not preserved since the issue was not raised in the initial answering papers of New York Central Mutual. Therefore, the issue was not before the Court.

However, the case which this case “cf” cited said that the issue of admissiblity of business records may be raised for the first time on appeal. See, Bath Med. Supply, Inc. v Deerbrook Ins. Co. , 14 Misc 3d 135(A)(App. Term 2d and 11th Jud. Dis. 2007). Yet, this case said that an appellate court may not do this. My suspicion is that the Appellate Term did not want to deal with the fact that these third-party affidavits are sufficient before the Appellate Division, yet are not acceptable before the Appellate Term.

I feel that at some point, we are going to have a prima facie showdown in the Second Department. I believe this will happen soon.