Why a substitute IME doctor is not allowed

(Editor note: original post said “now” allowed.  I meant “not” allowed)

It always seemed common sense that a substitute IME doctor would not be allowed. This case, through application of the post note of issue regulation,  said the following:

Diagne v J.T.S. Trucking, Inc., 2015 NY Slip Op 09369 (1st Dept. 2015)

While plaintiff has made a minimal showing, we find that the resignation of plaintiff’s expert accident reconstructionist following the filing of the note of issue, due to the breakdown in the relationship between plaintiff’s counsel and the expert, and having nothing to do with the case, is a sufficient demonstration of an unusual or unanticipated circumstance, within the meaning of 22 NYCRR § 202.21(d). As to the showing of substantial prejudice which would arise in the absence of this requested discovery (see generally Schroeder v IESI NY Corp., 24 AD3d 180, 181 [1st Dept 2005]), we reject the court’s and defendants’ assertion that plaintiff’s new expert could simply rely on the prior expert’s factual findings, as there is no evidence in the record of what those factual findings might be, or whether they are of the type on which the new expert could form an opinion. In any event, there would need to be evidence demonstrating the reliability of the prior findings (see Wagman v Bradshaw, 292 AD2d 84, 85 [2d Dept 2002], citing Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]), and it is not at all clear that this could be done without the testimony of the prior expert, who will apparently not testify.”

 

EBT upheld

Duke Acupuncture, P.C. v Mercury Cas. Co., 2015 NY Slip Op 51701(U)(App. Term 2d Dept. 2015)

“Defendant sufficiently established the timely mailing (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) of the denial of claim form at issue, which denied the claim on the ground of lack of medical necessity. However, the conflicting medical expert opinions proffered by the parties were sufficient to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services at issue. Consequently, the branch of defendant’s motion seeking summary judgment dismissing the complaint was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The branch of defendant’s motion seeking, in the alternative, to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]). As defendant is defending this action on the ground that the services rendered lacked medical necessity and defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, such an examination was material and necessary to defendant’s defense (see also Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d & 11th Jud Dists 2008]).”

Chiropractic Assoc. of Richmond Hill, P.C. v Mercury Cas. Co.,2015 NY Slip Op 51700(U)(App. Term 2d Dept. 2015)

South Nassau Orthopedic Surgery & Sports Medicine, P.C. v Mercury Cas. Co., 2015 NY Slip Op 51702(U)(App. Term 2d Dept. 2015)

 

The errant notice to admit

Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 2015 NY Slip Op 51451(U)(App. Term 2d Dept. 2015)

“On March 19, 2012, after plaintiff failed to respond to the notice to admit, defendant moved for summary judgment dismissing the complaint on the ground of plaintiff’s nonappearances at the duly scheduled EUOs, relying solely upon its notice to admit to establish plaintiff’s nonappearances”

“The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial” (DeSilva v Rosenberg, 236 AD2d 508, 508 [1997]; see Williams v City of New York, 125 AD3d 767 [2015]; Priceless Custom Homes, Inc. v O’Neill, 104 AD3d 664 [2013]; Bajaj v General Assur., 18 Misc 3d 25, 27 [App Term, 2d & 11th Jud Dists 2007]). Contrary to defendant’s assertion, its notice to admit went to the heart of the controversy (see Priceless Custom Homes, Inc., 104 AD3d at 664-665; Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d 770 [2011]). Consequently, plaintiff’s failure to timely respond to the notice to admit should not be deemed an admission of the matters stated therein, since the admissions sought by defendant were improper”

You have to wonder whether the Notice to Admit would still work in the Second Department to make a prima facie case?  I am guessing not.  Yet, if a medical provider puts into evidence a denial (as an admission of receipt) and seeks admission of the corresponding bill to the extent it links up to the denial, that would satisfy a prima facie case, in my opinion.

3212(f) – motion denied

IDF Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2015 NY Slip Op 51213(U)(App. Term 2d Dept. 2015)

“The Civil Court held that, since defendant had annexed its discovery responses to its reply papers, plaintiff’s cross motion to compel disclosure was moot and that there was an issue of fact as to medical necessity because defendant had failed to provide, in a timely manner, the medical records which plaintiff had sought, so that plaintiff could respond to the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s first cause of action.”

“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 in time to oppose defendant’s motion (see CPLR 3212 [f]), the peer review report, the complete set of medical documentation relating to the assignor received by defendant and the complete set of medical documentation provided to defendant’s peer reviewer. In light of the foregoing, defendant is not entitled to summary judgment dismissing plaintiff’s first cause of action”

In this case, the penalty for ambushing the Plaintiff with late discovery is to essentially lost the medical necessity branch of the motion.

This one makes no sense.

Acupuncture Solutions, P.C. v Lumbermans Mut. Cas. Co., 2015 NY Slip Op 51084(U)(App. Term 2d Dept. 2015)

At the end of the day, the insurance carrier received everything that it sought.  The Court really should not have vacated plaintiff’s notice of trial.

“The fact that plaintiffs may have responded to the 2012 discovery demands in 2012 (a claim that defendant denies) did not entitle plaintiffs to ignore defendant’s July 16, 2013 demands, even if they were identical to the 2012 version, since they were now addressed to an amended complaint which contained new facts. Thus, the branch of defendant’s motion seeking to vacate the notice of trial should have been granted as it was timely (see Uniform Rules for the Dist Cts [22 NYCRR] § 212.17 [c]) and was based upon a certificate of readiness which contained the erroneous statement that discovery had been completed (see Savino v Lewittes, 160 AD2d 176 [1990]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d & 11th Jud Dists 2008]; see also Queens Chiropractic Management, P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).”

A difference without a distinction.

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.

(1)

“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””

(2)

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.