Protection of the MRI facilities on medical necessity motions

Medical Arts Radiological Group, P.C. v NY Cent. Mut. Fire Ins. Co., 2015 NY Slip Op 51035(U)(App. Term 2d Dept. 2015)

“Thus, when defendant moved for summary judgment dismissing the complaint, an automatic stay of disclosure went into effect pursuant to CPLR 3214 (b) (see Arts4All, Ltd. v Hancock, 54 AD3d 286 [2008]), and remained in effect (see Rockaway Med. & Diagnostic, P.C. v Utica Mut. Ins. Co., 19 Misc 3d 142[A], 2008 NY Slip Op 51033[U] [App Term, 2d & 11th Jud Dists 2008]) until February 8, 2013, when the Civil Court directed defendant to provide verified responses to plaintiff’s demands for discovery. Plaintiff demonstrated that there was a legitimate need for discovery with respect to defendant’s defense of lack of medical necessity (see Reilly, 269 AD2d at 582; Metropolitan Diagnostic Med. Care, P.C. v A. Cent. Ins. Co., 42 Misc 3d 133[A], 2013 NY Slip Op 52246[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). “Therefore, the court properly considered [plaintiff’s motion] during the pendency of [defendant’s] motion for summary judgment” (Reilly, 269 AD2d at 582).”

I do not think this would apply to an EMG provider or most conservative care providers.  Yet, MRI providers and DME providers cannot legitimately interpose meaningful rebuttal without any discovery.

Difference between condition order and standard order

Seck v Serrano, 2015 NY Slip Op 00596 (1st Dept. 2015)

“We note that the order was not a conditional, “self-executing” order, which required discovery to be complied with by a specific date, that becomes “absolute” on the specified date if the condition has not been met (see Wilson v Galacia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]). Rather, defendants were authorized to renew their application for dismissal if plaintiff failed to comply with the discovery demands by the 20-day deadline. Defendants did not so move, and months later, when they finally did, they were already in receipt of all discovery demanded pursuant to the order.”

Conditional orders can be deadly; standard orders are iffy.

A worthless preclusion order

Optimal Well-Being Chiropractic, P.C. v Chubb Indem. Ins. Co., 2014 NY Slip Op 51807(U)(App. Term 2d Dept. 2014)

“Defendant’s only argument on appeal with respect to its cross motion is, in essence, that the complaint should have been dismissed on the ground that plaintiff will not be able to demonstrate its right to recover at trial because plaintiff is precluded, pursuant to a prior so-ordered discovery stipulation, from offering, among other things, the bills or its own documentary proof of the submission of those bills. At a trial, a no-fault plaintiff’s prima facie burden is to demonstrate proof of the submission to the defendant of the claim forms at issue (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33Alev Med. Supply, Inc. v Geico Gen. Ins. Co., 44 Misc 3d 131[A], 2013 NY Slip Op 52322[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). As the record demonstrates that the bills at issue were denied, and as the denials admit receipt of the bills (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]), defendant has not shown that plaintiff will not be able to establish its right to recover at trial. Therefore, defendant has not established a basis to disturb so much of the order as denied defendant’s cross motion for summary judgment dismissing the complaint.”

Absent an order striking the complaint, discovery sanctions against the medical provider are futile.


Disclosure penalties discussed

Cason v Smith, 2014 NY Slip Op 06412 (4th Dept. 2014)

This is an interesting discovery case.  The first principle is that once the employee leaves the employ, a 3126 sanction is not proper.

The second principle involves getting blood from a stone.  Once the to be deposed party folds its tend and concedes the key point, the adverse party cannot get the answer stricken or the complaint dismissed when the to be deposed party skips deposition.


“We agree with defendants, however, that the court abused its discretion in striking the answer insofar as interposed by Werner. Initially, we note that there was no basis for the court to sanction Werner for failing to produce Smith inasmuch as Smith left Werner’s employ prior to commencement of the action, and plaintiff “proffered no evidence that [Werner] exercised control over [Smith] and thus was responsible for [Smith]’s failure to appear for his deposition””


With respect to Werner’s failure to comply with a prior order

to produce a corporate representative for deposition, it is well established that “[a]lthough the nature and degree of a sanction for a party’s failure to comply with discovery generally is a matter reserved to the sound discretion of the trial court, the drastic remedy of striking an answer is inappropriate absent a showing that the failure to comply is willful, contumacious, or in bad faith” (Green v Kingdom Garage Corp., 34 AD3d 1373, 1374; see Mosey v County of Erie, 117 AD3d 1381, 1384). “Once a moving party establishes that the failure to comply with a disclosure order was willful, contumacious or in bad faith, the burden shifts to the nonmoving party to offer a reasonable excuse” (WILJEFF, LLC v United Realty Mgt. Corp., 82 AD3d 1616, 1619). Here, plaintiff met that initial burden, “thereby shifting the burden to defendant[s] to offer a reasonable excuse” (Hill v Oberoi, 13 AD3d 1095, 1096). We agree with Werner, however, that it offered a reasonable excuse for its failure to comply with the prior order. Plaintiff sought to depose a Werner representative solely in connection with his cause of action involving negligent hiring, training, and supervision, and such discovery was no longer relevant after Werner conceded the facts necessary to establish liability as a matter of law based on respondeat superior”

Discovery sanction of dismissal was warranted

Jamhil Med., P.C. v Allstate Ins. Co., 2014 NY Slip Op 51028(U)(App. Term 2d Dept. 2014)

“Defendant subsequently moved to dismiss the complaint, pursuant to CPLR 3126, on the ground that plaintiff had failed to comply with the July 6, 2011 order of the Civil Court since plaintiff had failed to produce its owner and its employee for duly scheduled examinations before trial. Plaintiff opposed the motion and submitted written responses to defendant’s discovery demands. Plaintiff appeals from an order of the Civil Court entered July 17, 2012 which granted defendant’s motion and dismissed the complaint with prejudice.”

” The determination whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the trial court’ ” (Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923 [2012], quoting Giano v Ioannou, 78 AD3d 768, 770 [2010], quoting Fishbane v Chelsea Hall, LLC, 65 AD3d 1079, 1081 [2009]; see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious or in bad faith (see Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685 [2011]). In the present case, plaintiff’s willful and contumacious conduct can be inferred from its refusal to adequately comply with [*2]discovery requests, even after being directed to do so by court order, as well as the absence of a reasonable excuse for its failure to comply (see Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d 943 [2012]; Rowell v Joyce, 10 AD3d 601 [2004]).”

So the Court found that a one strike rule was proper.

Stipulation does not serve as collateral estoppel

All Boro Psychological Servs., P.C. v Allstate Ins. Co., 2014 NY Slip Op 50870(U)(App. Term 2d Dept. 2014)

Remember the stipulation where the releasee agreed that the medical provider was properly formed and complied with all applicable licensing laws?  At some point, you might have signed one and rued the consequences for the carelesness.  Well, today, it is okay.

(1) “With respect to defendant’s cross motion, plaintiff contends that defendant is not entitled to any discovery regarding whether plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) because defendant previously entered into stipulations, in unrelated actions, which, among other things, stated that, as of the date the stipulations were entered into, plaintiff was “in full compliance with any licensing requirements affecting its right to obtain reimbursement under the applicable No Fault laws and regulations.” However, as the issue was [*2]resolved in a stipulation and not after it was actually litigated, the doctrine of collateral estoppel is inapplicable”

But the SIU file?  It is discoverable.

(2) “To avoid having to produce its SIU file, defendant had to establish that its SIU file was prepared solely for litigation (Landmark Ins. Co. v Beau Rivage Rest., 121 AD2d 98, 101 [1986]; see also Bombard v Amica Mut. Ins. Co., 11 AD3d 647 [2004]). As defendant failed to demonstrate that it had decided to deny plaintiff’s claims prior to commencing its investigation, the contents of defendant’s SIU file are not privileged and are discoverable (Bombard, 11 AD3d at 648).”

And of course, Mallela discovery is always allowed

(3) “Contrary to plaintiff’s contention, defendant sufficiently demonstrated that defendant’s discovery demands which concerned a Mallela defense are “material and necessary in the prosecution or defense of an action” (CPLR 3101 [a]; All Boro Psychological Servs., P.C. v Allstate Ins. Co., 40 Misc 3d 131[A], 2013 NY Slip Op 51124[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Medical Polis, P.C. v Progressive Specialty Ins. Co., 34 Misc 3d 153[A], 2012 NY Slip Op 50342[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Defendant further established its entitlement to depose Vladimir Grinberg and plaintiff’s owner, Dr. John Braun”

The articulable need test for a provider EBT on a medical necessity case

Arnica Acupuncture P.C. v Interboro Ins. Co., 2014 NY Slip Op 50554(U)(App. Term 1st Dept. 2014)

“However, we find no abuse of discretion in the denial of defendant’s motion to compel the deposition of plaintiff’s treating provider on this record, which contains an affidavit from the provider explaining the rationale for the underlying acupuncture services, and where defendant failed to set forth an “articulable need” for the provider’s deposition ”

This case lies on the extreme end of the Ralph Medical spectrum.  Plaintiff did not comply with “interrogatories”, offer an operative report or comply with disclosure in any shape, fashion or form.  Rather, the court has held that an affidavit of merit will suffice for a deposition.  People have joked, on and off, that the CPLR does not apply to no-fault.  This case is further proof that there is truth to that maxim.

Premature summary judgment motion

Hillside Open MRI, P.C. v Praetorian Ins. Co., 2014 NY Slip Op 50408(U)(App. Term 2d Dept. 2014)

(1) “In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion on the ground that defendant had failed to respond to plaintiff’s discovery demands and that defendant’s responses were necessary to oppose defendant’s motion (see CPLR 3212 [f]). Plaintiff also cross-moved to compel defendant to provide the requested discovery (see CPLR 3124).”

(2) “Here, in support of its motion for summary judgment dismissing the complaint on the ground of lack of medical necessity, defendant alleged that it had timely denied plaintiff’s claims on that ground based on two peer review reports. In opposition to defendant’s motion, and in support of its cross motion to compel discovery, plaintiff demonstrated that it had requested from defendant, but had not received, the medical documentation underlying defendant’s decision to deny the claims based on lack of medical necessity, and that plaintiff needed such discovery to oppose defendant’s motion”

(3) “Consequently, defendant’s motion should have been denied with leave to renew following discovery, and plaintiff’s cross motion granted”

What is interesting is to note the following citation”compare Elmont Open MRI & Diagnostic Radiology, P.C. v Travelers Indem. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52223[U] [App Term, 9th & 10th Jud Dists 2010]).”  I am guessing Defendant quickly moved for summary judgment and Plaintiff was able to satisfy this panel that they were not guilty of laches.  The other interesting thing is that the Court limited the discovery to the documents the peer doctor examined.  This is in contrast to the situation where the carrier is ordered to disclose every medical record in the claim file.


EBT denied

Ralph Med. Diagnostics, PC v Mercury Cas. Co., 2014 NY Slip Op 24054 (App. Term 1st Dept. 2014)

Well, the CPLR does not apply to no-fault, according to the Appellate Term, First Department.  Zlatnick has been revived, and treating healthcare practitioners do not have to sit and be asked about why the performed the billed for medical services.

For anyone who thinks you get nothing out of a physician EBT (except preclusion for no-shows), then you have never properly deposed a treating healthcare practitioner.  I have two transcripts in my office where the treating healthcare practitioners tanked their cases.  One said the injuries might not have been related to the injury (substantiating our radiologist’s review of the films); the other one said he never read the IME report that he disagreed with in his affidavit of merit.  Before that, I remember a “Fee schedule expert” admitting at a deposition that she had no medical training and could not opine with a reasonable degree of coding certainty that the bills were improperly reduced.

So against that backdrop, I have to say the gentlemen on the fourth floor in Room 408 at 60 Centre Street just do not get it.  Maybe, I just do not get it.

“In the realm of no-fault litigation, a defendant insurer “is not entitled to serve an EBT notice, in knee-jerk fashion … without demonstrating why responses to written interrogatories [and a document demand] were somehow lacking. Any other result would … subvert the purpose of no-fault laws …, [viz.,] the prompt payment of first-party benefits … [and unduly] magnify the expense of litigation” (Vladimir Zlatnick, M.D., P.C. v Government Empls. Ins. Co., 2 Misc 3d at 353).”

The answer to Justice Markey’s riddle, which was resurrected in this case is simple: AAA arbitration.  It is cheap, effective and quite lethal to the carriers.  And the  best part about it: there is no discovery.

This case will be at the Appellate Division.


Gumbs v Flushing Town Ctr. III, L.P., 2014 NY Slip Op 01267 (2d Dept. 2014)

“Discovery determinations rest with the sound discretion of the motion court (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]). This Court is nonetheless vested with a corresponding power to substitute its own discretion for that of the motion court (id.). Notwithstanding our own discretion, “deference is afforded to the trial court’s discretionary determinations regarding disclosure” (Don Buchwald & Assoc. v Marber-Rich, 305 AD2d 338, 338 [1st Dept 2003][internal quotation marks omitted]). Unlike the dissent, we find no abuse of the court’s discretion given the paucity of support for the motion in the first instance. Specifically, defendants’ argument regarding the relevance of Gumbs’s medical history as set forth in his deposition was improperly made for the first time in their reply papers (see e.g. [*2]Ambac Assur. Corp. v DLJ Mtge. Capital, Inc., 92 AD3d 451, 452 [1st Dept 2012]). The purpose of reply papers “is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of the motion” (id. [internal quotation marks omitted]). This impropriety deprived plaintiffs of an opportunity to respond to the argument. Accordingly, the denial of defendants’ motion was reasonable and supported by law.

We, otherwise, find no occasion to substitute our own discretion for that of the motion court. Gumbs’s waiver of his physician-patient privilege is limited in scope to “those conditions affirmatively placed in controversy” (Felix v Lawrence Hosp. Ctr., 100 AD3d 470, 471 [1st Dept 2012]). Gumbs did not place his entire medical condition in controversy by suing to recover damages for orthopedic injuries (see e.g. Schiavone v Keyspan Energy Delivery NYC, 89 AD3d 916, 916-917 [2d Dept 2011]).


The dissent found noteworthy.  This was the rule I always learned as Justice Gische stated it:

“Defendants’ motion squarely put before the court plaintiff’s verified complaint and supplemental bills of particulars which expressly specified that plaintiff’s demand for monetary damages included loss of future earnings and loss of enjoyment of life based upon the permanency of his injuries. These sworn statements were sufficient to show that plaintiff had put his overall physical condition at issue in this action. The absence of the deposition transcript detailing plaintiff’s general physical condition until defendants’ reply papers did not warrant denial of defendants’ motion.”

This was a 3-2 and I am sure someone will grant Defendant leave to appeal to the Court of Appeals.  The case looks like a 7 figure dispute.