Civil Court overturns Appellate Term precedent

Park Slope Med. & Surgical Supply, Inc. v Metlife Auto & Home, 2012 NY Slip Op 22064 (Civ. Ct. Queens Co. 2012)

“In any event, where the denial of a no-fault claim is based on a peer reviewer’s finding of a lack of medical necessity, upon an ensuing trial on that issue, the expert whose opinion is most critical is the author of peer review report. In fact, even in its decisions ruling that an expert who is not the original peer reviewer should be permitted to testify, the Appellate Term has said that such expert’s opinion should be “limited to the basis for the denial as set forth in the original peer review report.” (See Park Slope Med. & Surg. Supply v Progressive, ___ Misc 3d ____ , 2012 NY Slip Op 50349 [U][2d, 11th & 13th Jud Dists 2012], supra; Radiology Today, P.C., 32 Misc 3d 144[A][2d, 11th & 13th Jud Dists 2011], supra; Dilon, 18 Misc 3d 128[A], [2d, 11th & 13th Jud Dists 2007] supra.) However, if the peer review report is not in evidence, the parameters of such report, including the reasons given for the denial, are not a matter of record, and for purposes of trial, are unknown.”

The peer report is a medical based document that makes conclusions based upon assumptions that are presented in the Assignor’s medical history.  The peer report is itself redundant and should not be admitted into evidence since it constitutes improper bolstering of the underlying expert testimony.

Testimony that runs consistent with the peer report should be admissible.

10-1 odds this gets reversed.  The backlog of cases at the App Term is about 2-3 years, so we will not get an answer until the middle of this decade.  Heaven knows how much more appellate work the defense bar will egage in until this issue is “resolved” (again).

Objected to inadmissible proof spells doom

Medical Assoc., P.C. v Interboro Ins. Co., 2012 NY Slip Op 50392(U)(App. Term 2d Dept. 2012).

I wrote the reply that got this case dismissed on appeal.  I am not sure if I wrote the appeal.  The Court said the following:

“Triable issue of fact not raised because:

“In opposition, plaintiff proffered an unsworn medical report (see CPLR 2106; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; cf. Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).”

And a hearsay bonus here:

“The purpose of the peer review report submitted by defendant was not to attempt to prove that plaintiff’s assignor was injured as documented in her medical records, or that she was treated as set forth in those records, but to establish that, assuming the facts set forth therein were true, the treatment allegedly provided by plaintiff was not medically necessary (Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant was not required to demonstrate that the records fell within an exception to the rule against hearsay (id.). Thus, the Civil Court should have granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.”

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”

Present sense impression? Refreshing recollection? Inconsistent Statement?

Seaberg v North Shore Lincoln- Mercury, Inc., 2011 NY Slip Op 05688 (2d Dept, 2011).

An interesting evidentiary discussion, in a civil matter, with plenty of criminal law citations involving routinely encountered issues.

(1) “plaintiff sought to admit into evidence a tape of Pina’s 911 call under the present sense impression or excited utterance exceptions to the hearsay rule. In opposition, the defendant quoted from Pina’s deposition testimony, in which he had stated, “somebody said to call [911]. A lady fell in the parking lot.” Defense counsel argued that this testimony demonstrated that Pina had not seen the accident and, accordingly, any statement he may have made that was recorded on the 911 tape was not within one of the proffered exceptions to the hearsay rule to the extent that it may have described how the accident occurred. The Supreme Court agreed with defense counsel, and denied the plaintiff’s request to admit the tape of Pina’s 911 call under the present sense impression or excited utterance exceptions to the hearsay rule.”

(2) “Pina did recall, however, waiting at the scene for approximatley 15 minutes until an ambulance arrived. He recalled that, during that time,

(3) “After Pina gave this testimony, the plaintiff’s counsel requested a bench conference, after which counsel stated, on the record, that Pina had just testified that he had seen no ice on the ground immediately after the accident, but in his prior deposition testimony, he admitted telling the 911 operator that he had seen “ice on the ground that caused [plaintiff] to slip and fall.”

(4) “The defense asserted that the plaintiff’s counsel was mischaracterizing Pina’s deposition testimony. Defense counsel then quoted from a portion thereof, in which Pina testified both that he did not recall seeing ice on the ground and that the content of the 911 tape did not refresh his recollection about the incident.

(5) “The jury returned a verdict in favor of the defendant on the issue of liability. Thereafter, the Supreme Court entered a judgment in favor of the defendant and against the plaintiff dismissing the complaint. The plaintiff appeals and we reverse.”

(6) “On appeal, the plaintiff contends that the judgment must be reversed and that a new trial is warranted because Pina’s statement on the 911 tape falls within the present sense impression exception to the hearsay rule or, alternatively, that she should have been allowed to refresh Pina’s recollection with the 911 tape and admit the 911 tape into evidence as a prior inconsistent statement. In opposition, the defendant contends that all of the plaintiff’s arguments are without merit because Pina did not witness the accident.”

(7) “Here, Pina did not witness the accident, but arrived at the scene after the fall. Thus, contrary to the plaintiff’s contention, any statements Pina may have made to the 911 operator about how the accident occurred were not present sense impressions of that issue, as he did not perceive the accident at all”

But (8) “We agree with the plaintiff, however, that the Supreme Court should have allowed her to refresh Pina’s recollection with the 911 tape. At trial, Pina explained that he had no independent recollection of the incident. Such testimony was sufficient to allow the plaintiff to play the 911 tape outside the presence of the jury and allow Pina to refresh his recollection about what he had told the 911 operator”

(9) “The plaintiff also contends that the 911 tape should have been admitted as a prior inconsistent statement since, at trial, Pina testified that he did not observe any ice during the 15 minutes he stood near the plaintiff waiting for the ambulance to arrive, which was inconsistent with statements he made to the 911 operator. We agree with the plaintiff. Here, the plaintiff laid the proper foundation for the introduction of the 911 tape as a prior inconsistent statement by questioning Pina as to the contents of the 911 tape so that he could explain any inconsistency (see Prince, Richardson on Evidence § 6-411[a] [Farrell 11th ed]; People v Wise, 46 NY2d 321, 326; People v Longo, 151 AD2d 786; cf. People v Wilkins, 221 AD2d 392). Upon the plaintiff’s laying of such foundation, the Supreme Court should have admitted the 911 tape into evidence as a prior inconsistent statement by Pina for the limited purpose of allowing the plaintiff to impeach his credibility”

Reversed on the law.

Another Article 10 case wittles away peer hearsay

Matter of State of New York v Mark S., 2011 NY Slip Op 04792 (3d Dept. 2011)

An astute commentator could probably write an article correlating the plaintiff’s bar’s purported financial detriment, viz. excluding defense doctors based upon impermissible “peer hearsay”, with the advent of Article 10 of the Mental Health Law.   I for one always found peer hearsay challenges specious, and convinced a civil court judge in a pre Article 10  published decision as such.  But, these Article 10 cases have pretty much done what the Appellate Division in the Matter of State of New York v Mark S. has said it did not want to do: “the expert should not be made a “conduit for hearsay”

I for one do not have a problem with the expert relying on hearsay, if only because the cross-examination pretty much focuses on the lack of personal knowledge of the expert with the hearsay records, and it allows an opposing expert to find holes in the hearsay records relied upon.

Also, do  not take the cavalier viewpoint that these Article 10 cases do not apply to no-fault or 5102(d) threshold practice.  We have already seen the Appellate Term, Second Department, rely on an Article 10 case in finding that peer hearsay is admissible.  There will be more cites to these types of cases in the future.

Here is the pertinent portion of the case:

“Initially, while civil rules of evidence apply to Mental Hygiene Law article 10 hearings (see Mental Hygiene Law § 10.07 [b]), the governing statute expressly contemplates that psychiatric examiners will have access to and consider all of a “respondent’s relevant medical, clinical, criminal or other records and reports” (Mental Hygiene Law § 10.08 [b]). While generally opinion evidence must be based on facts in the record or personally known to the witness (see Bednarz v Inn On Bridges St., Inc., 68 AD3d 1411, 1412 [2009]), under the professional reliability exception to the hearsay rule, an expert may provide an opinion based on otherwise inadmissible hearsay, “provided it is demonstrated to be the type of material commonly relied on in the profession” (Hinlicky v Dreyfuss, 6 NY3d 636, 648 [2006]; see Hambsch v New York City Tr. Auth., 63 NY2d 723, 726 [1984]). The documentary evidence at issue — presentence reports, SORA records and parole revocation records — was properly relied upon by Lord in forming his expert opinion because, as Lord testified without contradiction (see People v Goldstein, 6 NY3d 119, 125 [2005], cert denied 547 US 1159 [2006]; Matter of State of New York v Motzer, 79 AD3d 1687, 1688 [2010]), they are of the type commonly relied upon in this setting (see Matter of State of New York v Wilkes, 77 AD3d 1451, 1452-1453 [2010] [parole records]; Matter of State of New York v J.A., 21 Misc 3d 806, 816-817 [Sup Ct, Bronx County [*4]2008] [presentence report]; but see State of New York v Dove, 18 Misc 3d 254, 256-258 [Sup Ct, Bronx County 2007]). In fact, such records have been specifically deemed reliable by Mental Hygiene Law § 10.08 (see Matter of State of New York v Pierce, 79 AD3d 1779, 1780 [2010], lv denied 16 NY3d 719 [2011]) [“parole board documents, presentence reports, accusatory instruments, certificates of conviction, police reports and respondent’s criminal records”]; see also People v Mingo, 12 NY3d 563, 572-574 [2009] [case summaries, presentence reports and victim statements are reliable hearsay admissible in SORA proceedings][FN2]).

Moreover, the hearsay in issue represented only a small fraction of the evidence considered by the experts and “[did] not constitute the sole or principal basis for the experts’ opinion” (Matter of State of New York v Fox, 79 AD3d 1782, 1783 [2010]). Lord’s consideration of evidence of the facts underlying respondent’s conduct beyond the crimes of conviction, upon his guilty pleas, was not improper, given that the evidence of uncharged crimes (or crimes greater than the ultimate conviction) was “relevant and not unduly prejudicial,” and there is “no provision in Mental Hygiene Law article 10 that limits the proof to acts that resulted in criminal convictions when considering [respondent’s mental abnormality]” (Matter of State of New York v Shawn X., 69 AD3d 165, 172 [2009], lv denied 14 NY3d 702 [2010]; see Matter of State of New York v Fox, 79 AD3d at 1784).

We now turn to whether the documentary evidence itself was properly received in evidence to assist Supreme Court as factfinder in evaluating the experts’ opinions. Initially, expert testimony based upon hearsay is ordinarily admissible under the professional reliability rule “for the limited purpose of informing the [factfinder] of the basis of the expert[s’] opinion[s] and not for the truth of the matters related” (Matter of State of New York v Wilkes, 77 AD3d at 1453 [internal quotation marks and citation omitted]; see People v Wlasiuk, 32 AD3d 674, 680 [2006], lv dismissed 7 NY3d 871 [2006]). The court properly admitted this testimony for the limited purpose of aiding its evaluation of the experts’ psychiatric opinions. While the court — in its decision finding that respondent suffers from a mental abnormality — concluded that there was relevant and adequate evidence in the record demonstrating that there was a nonconsensual element to respondent’s rapes, recounting facts contained in the victims’ supporting depositions, the court reached this conclusion for the narrow permissible purpose of concluding that these depositions were “properly considered in the formulation of professional opinions.” Thus, contrary to respondent’s claim, we do not find that Supreme Court erroneously relied on the hearsay statements contained in the exhibits for the truth of the matters asserted therein.

There is, of course, a recognized “distinction between the admissibility of an expert’s opinion and the admissibility of the information underlying it” (People v Goldstein, 6 NY3d at 126). There is no clear rule on when “a proponent of an expert’s opinion [may] put before the fact finder all of the information, not otherwise admissible, on which the opinion is based” (id.). Thus, “whether evidence may become admissible solely because of its use as a basis for expert testimony remains an open question in New York” (Hinlicky v Dreyfuss, 6 NY3d at 648; see Matter of State of New York v Fox, 79 AD3d at 1783)[FN3]. The concern is that the expert should [*5]not be made a “conduit for hearsay” (People v Goldstein, 6 NY3d at 126 [internal quotation marks and citation omitted]). A related concern in criminal cases is the right of a defendant under the Confrontation Clause (US Const Sixth Amend) to cross-examine declarants regarding their hearsay statements (id. at 127; see Crawford v Washington, 541 US 36 [2004]), a right not applicable in these Mental Hygiene Law article 10 civil proceedings (see Matter of State of New York v Wilkes, 77 AD3d at 1451-1452; see also Mental Hygiene Law § 10.01; Matter of State of New York v Campany, 77 AD3d 92, 95-98 [2010], lv denied 15 NY3d 713 [2010]).

With due regard to the foregoing concerns, we are not persuaded that Supreme Court, acting as factfinder at this bench trial, abused its discretion or erred as a matter of law in admitting these customarily relied-upon documentary records containing hearsay into evidence for its evaluation of the weight and credibility of the expert testimony (see Matter of State of New York v Pierce, 79 AD3d at 1781; Matter of State of New York v Craig T., 77 AD3d 1062, 1064 [2010]).”

Consolidated Mess

Consolidated Imaging P.C. (Rafailova) v Travelers Indem. Co., 2011 NY Slip Op 50159(U)(Civ Ct. Richmond Co. 2011)

I did not miss this case.  I just avoid discussing Civil Court cases that will be overturned as a matter of course and are bereft of accurate reasoning.  There is a lot to say about this case, and I will keep it brief.

First, the “hearsay” objections are without merit for the reasons that we have seen over the last few years.  My previous posts address this topic ad nauseum.

Second, the”generally accepted language” that was quoted in the opinion, which cited to various lower court cases was probably rejected in Enko Enters. Intl., Inc. v Clarendon Natl. Ins. Co., 2010 NY Slip Op 52267(U)(App. Term 1st Dept. 2010), when the Appellate Term spelled out why the peer review prima facie proved the lack of medical necessity for the durable medical equipment in that matter.

Third, you cannot say that the difference in specialties goes to the weight of the evidence, yet cite to Judge Hirsch’s opinion which holds that this particular defect in the peer review or trial testimony is per se fatal.

Fourth, the insurance law and the regulations do not allow pre-certification.  That is the basis for the Magnacare storm that has been brewing over the last year against Geico, and which may spell a 7-8 figure disaster for that carrier.

Fifth, the nature of all insurance contracts, whether they be auto or commercial, involve some degree of Monday Morning Quarterbacking.  This is why 3 levels of appeals are allowed in the commercial health insurance paradigm, followed by an Article 78 if a party is unhappy.

This was just a ridiculous decision.  However, after receiving an affirmation in opposition  from an attorney who attached this case with the Judge’s face on it, I felt the need to respond.

Lastly, I am not offering an opinion as to the persuasiveness or lack thereof regarding the doctor’s testimony.  The trial testimony may very well have been conclusory or self contradictory.  It could have been consistent and logical.  That does not concern me.  But, the methodology that was utilized to reach the ultimate conclusion was improper.  I find this troubling.

Another Article 10 action brings forth an interesting evidentiary development

Matter of State of New York v Motzer, 2010 NY Slip Op 09688 (4th Dept. 2010)

“Respondent contends that the court erred in allowing petitioner’s expert psychologist to offer an opinion because that opinion was based in part on interviews with collateral sources who did not testify at trial, i.e., respondent’s treatment providers at the psychiatric hospital. We reject that contention. The professional reliability exception to the hearsay rule “enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession” (Hinlicky v Dreyfuss, 6 NY3d 636, 648; see Hambsch v New York City Tr. Auth., 63 NY2d 723, 725-726; Matter of Murphy v Woods, 63 AD3d 1526). Here, the expert testified that the statements of a respondent’s treatment providers are commonly relied upon by the profession when conducting a psychological examination to determine whether a respondent is a dangerous sex offender requiring confinement (see generally People v Goldstein, 6 NY3d 119, 124-125, cert denied 547 US 1159).

We reject respondent’s further contention that the court erred in allowing petitioner’s expert psychologist to give hearsay testimony regarding her conversations with respondent’s treatment providers. ” [H]earsay testimony given by [an] expert[] is admissible for the limited purpose of informing the jury of the basis of the expert[‘s] opinion[] and not for the truth of the matters related’ ” (Matter of State of New York v Wilkes [appeal No. 2], 77 AD3d 1451, 1453). The expert gave limited hearsay testimony on direct examination with respect to a conversation she had with one of respondent’s treatment providers, and she testified that she relied on the hearsay information to form her opinion on the case. We thus conclude that the limited amount of hearsay information was “properly admitted after the court determined that its purpose was to explain the basis for the expert[‘s] opinion[], not to establish the truth of the hearsay material, and that any prejudice to respondent from that testimony was outweighed by its probative value in assisting the [court] in understanding the basis for [the] expert’s opinion” (id. at 1453).

I guess Judge Sweeney was correct in Primary Psychiatric Health, P.C. v. State Farm Mut. Auto Ins. Co., 15 Misc.3d 1111(A)(Civ. Ct. Kings Co. 2007).

It was a good run at the cards

Elmont Open Mri & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 52222(U)(App. Term 2d Dept. 2010)

I guess the luck of certain Nassau plaintiff firms (9th and 10th judicial districts) who received favorable decisions on medical necessity motions, while their counterparts in the other Second Department lower courts (2nd, 11th & 13th judicial districts) did not fare as well, were handed a glaring set back in the latest round of decisions.

To put it bluntly, the Appellate Term has held that these firms’ papers and arguments in attempting to defeat a marginally supported lack of medical necessity motion will always lose.  While the Nassau judges, in several well though-out published decisions found otherwise, the Appellate Term for the 9th and 10th Judicial Districts has now conformed their holdings on this issue to that of their New York City counterparts.

While I have reservations about the Appellate Term’s holding that the failure to annex documents that a peer review doctor relied upon is proper, what is interesting is that this court adopted the Urban Radiology holding verbatim.  As it related to the “non-hearsay rule” of plaintiff’s documents, this decision was correct in light of the Fourth Departments holding in Matter of State of New York v Wilkes, 2010 NY Slip Op 07006 (4th Dept 2010).  As those who read this blog regularly will know, I discussed the Wilkes case and predicted that it would solidify the non-hearsay rule enunciated in the Urban court and now followed by the Elmont court.  I have always said to watch the Fourth Department when they dump about 100 cases online once each month.

Here is my favorite line from this Court: “defendant was not required to consider plaintiff’s bills in a vacuum and to ignore medical records which defendant had received either from plaintiff’s assignor or from another provider who had submitted such records on behalf of the assignor”

A real doozy from the Fourth Department

Smolinski v Smolinski, 2010 NY Slip Op 08468 (4th Dept. 2010)

I admit that I failed to pick up this case on my own.  A nice email from the law journal with their cases of interest was transmitted on my Blackberry today.  Having found a free moment while grabbing breakfast, I opened the email and saw this case.  All I could say is (edited for content).  This case presents some interesting evidentiary issues that arose.  But the behavior of the attorneys in this case and the lashing the attorneys received from this court was a little upsetting, even when (according to the law journal) this case had a jury value of 44 million dollars.  Note the word had since the liability verdict was reversed for a new trial – the fourth new one.

An expert’s opinion based upon hearsay is allowable in an Article 10 Mental Health Hearing

Matter of State of New York v Wilkes, 2010 NY Slip Op 07006 (4th Dept. 2010)

“Insofar as respondent preserved for our review his further contention that the court erred in permitting two psychologists to testify to limited amounts of hearsay information at trial in order to explain their opinions, we conclude that respondent’s contention lacks merit. Although it is a “questionable assumption” that a psychologist may “not only . . . express [his or] her opinion but [may also] repeat to the jury all the hearsay information on which it was based” (People v Goldstein, 6 NY3d 119, 126, cert denied 547 US 1159), it is well settled that “hearsay testimony given by experts is admissible for the limited purpose of informing the jury of the basis of the expert[s’] opinion[s] and not for the truth of the matters related” (People v Campbell, 197 AD2d 930, 932, lv denied 83 NY2d 850; see People v Wlasiuk, 32 AD3d 674, 680, lv dismissed 7 NY3d 871; Shahram v Horwitz, M.D., 5 AD3d 1034, 1035). We thus conclude that the testimony was properly admitted after the court determined that its purpose was to explain the basis for the experts’ opinions, not to establish the truth of the hearsay material, and that any prejudice to respondent from the testimony was outweighed by its probative value in assisting the jury in understanding the basis for each expert’s opinion.”

The Fourth Department seems to agree with the Appellate Term, Second Department’s rationale in Urban v. Tristate as it relates to expert opinions based upon hearsay.