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.

The destruction of peer hearsay: It is not hearsay – and much more

Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 2010 NY Slip Op 50987(U)(App. Term 2d Dept. 2010)

This case really should be in the misc.3d reporter and Habif, the last case we discussed, should have the aforesaid (U) cite.  The predominant issue that is presented in this case involves peer hearsay.  But, there is a subtle jab at how certain Kings County judges adjudicate the mailing issue; a mention of 3212(g) and a way to possibly invoke it; and the duty to communicate when an additional verification request is received.  Now on to the discussion of this case.

1. Peer hearsay – exception to the hearsay rule

The case starts off with the observation that the plaintiff assignor’s medical records are fair game under the standard argument that a medical provider is estopped from challenging medical records that reference or discuss the assignor.  This rule follows the long line of cases, which holds that the plaintiff’s medical records constitute admissions when used by the defendant.  The court was correct in invoking this rule, and should have stopped here in its analysis.

2. Peer hearsay – it is non hearsay

“Moreover, we note that, while defendant’s peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in Rafailova’s records were true, the treatment allegedly provided was not medically necessary. Therefore, as defendant was not using the underlying medical records for their truth, such records were not being used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff’s argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided was not medically necessary is irrelevant.”

I am not sure that I agree with theabove reasoning.  If a patient’s medical chart shows normal Range of Motion and symmetrical Deep Tendon Reflexes, then of course I as a competent defense attorney am going to use these findings for their truth, to show that certain diagnostic testing was medically unreasonable.  This also runs counter to the Ninth and Tenth Districts’ determination in Progressive Medical Inc. v. Allstate.  Finally, it runs counter to the Second, Eleventh and Thirteenth Districts’ determination in Pan Chiro, P.C. v. Mercury Ins. Co.

But, the real problem with this case is the application it has to personal injury and medical malpractice litigation.  I will let your imagination craft the creative lawyering this case presents.

3. Mailing

The rule in Civil Kings with certain judges is that the affidavit must be specific as to the dates an item is mailed.  It is insufficient, according to these judges, to present an affidavit that discusses the general mailing procedure, which will allow a reader to infer that an annexed denial was mailed on the date of the denial or the next business date.  The fact that certain plaintiff’s prevailed using this argument forever baffled my mind, and was always a key determination as to whether or not I appealed an adverse decision.  Here is an example of case from Kings County where I reversed a judge who said my affidavit was not specific enough: Quality Psychological Services, P.C. v. Mercury Ins. Group, 27 Misc.3d 129(A)(App. Term 2d Dept. 2010).  Here is an example from Queens County where I reversed a judge who said my affidavit was not specific enough : Innovative Chiropractic, P.C. v. Mercury Ins. Co., 25 Misc.3d 137(A)(App. Term 2d Dept. 2010).

Here is the language from Urban:

“The Civil Court denied the motion due to the lack of specificity in the affidavit of defendant’s mail clerk regarding mailing of the denial & requests for additional verification.  The instant appeal by defendant ensued. Contrary to the determination of the Civil Court, the affidavits of defendant’s no-fault claims examiner and mail clerk were sufficient to establish that defendant had timely mailed the additional verification requests and NF-10 denial of claim forms in that they described, in detail, based on the affiants’ personal knowledge, defendant’s standard office practice and procedure designed to ensure that said documents were mailed”

4. Communicate or be estopped

A reoccurring theme in the case law has involved the insurance carrier sending a verification request  to a provider who the insurance carrier knows, or should know, does not have the requested information.  A similar theme involves the sending of verification requests to a provider when they have an attorney submitting their bills.

The Court, in following recent precedent, held that the provider must communicate that it does not have the information in order to stop the tolling of the time to pay or deny the claim.  The Urban court said the following: “While plaintiff argues that the requests should have been sent to the referring physician, inaction was, in this case, not a proper response (see Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]). Plaintiff should have informed defendant that the requests should be sent elsewhere.”

5. The door opens up to the invocation of 3212(f)

“Furthermore, plaintiff did not demonstrate that it needed the records from the other providers in order to raise a triable issue of fact as to whether the services at issue were medically necessary when they were rendered (see CPLR 3212 [f]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and that it had served discovery demands during the ample opportunity that it had to commence discovery proceedings to obtain such records before the instant summary judgment motion was brought (see Meath v Mishrick, 68 NY2d 992 [1986]).

It looks like the Defendant failed to annex the medical records that its peer review doctor relied upon in its motion for summary judgment.  Interestingly, the court held that if Plaintiff was diligent in seeking discovery, it would have been able to invoke 3212(f).  This is very interesting and it also makes sense.

All that in one case.

Peer hearsay: Play it again Sam

Beal-Medea Prods., Inc. v GEICO Gen. Ins. Co., 2010 NY Slip Op 50800(U)(Civ. Ct. Kings Co. 2010)

This is the topic that just will not go away.  Except for one case that I will discuss later, the Appellate Term has consistently held that a peer doctor may predicate his testimony from an Assignor’s out-of-court medical records.  Although never explicitly stated, the courts have held that there is an inference that medical records containing some biographical information about the assignor are reliable. This is why the Appellate Term has rebuked every hearsay challenge that has been presented on a properly developed record.

Yet, each time the Appellate Term holds that the purported hearsay challenges lack merit, another civil court purports to find a “distinction” in order to sustain a hearsay challenge.  Most of these distinctions are without a difference, and where the distinction occurs in this case is beyond me; but the Civil court here found that the peer doctor’s testimony should be stricken because it violated Wagman.  The Court, without going into detail, continuously cited Progressive Med., Inc. v Allstate Ins. Co., 26 Misc 3d 138(A)(App. Term 2d Dept. 2010), for its justification in striking the testimony of the peer doctor.

In case you forgot, Progressive Med stated the following:

“On the other hand, on the scant record provided to this court, there is no basis to disturb the court’s decision to strike defendant’s witness’s testimony. Plaintiff advanced what was, in effect, a hearsay objection. Defendant failed to demonstrate either that the testimony did not rely on out-of-court documents for the truth of the matters stated therein, or that the documents were being relied upon for their truth but fell within an exception to the rule against hearsay. Consequently, we cannot say that it was an improvident exercise of discretion for the court to strike the testimony.”

Even one of the most respected practitioners from the no-fault plaintiff’s bar, along with the respected no-fault blogger from the same law firm, observed the following about Progressive Med., Inc. v Allstate Ins. Co., in an April 8, 2010 New York Law Journal article entitled APPELLATE COURTS ADDRESS ISSUES OF PROCEDURE AND FOUNDATION 4/8/2010 NYLJ 3, (col. 1): “Practitioners should note, however, that the court took pains to point out the sparse record.”

As I have said numerous times, medical records containing some biographical information about the assignor will raise an inference that the said medical records are reliable.  This is never to say -and I have said this before – that a Plaintiff can offer evidence to rebut this inference.  Think of res ipsa loquitor.  It is is a similar concept here.

But, to jump up and down, yell hearsay and actually obtain a decision like this should and probably will lead to an appeal, whose result is preordained.


And this is why computerized range of motion testing is medically necessary – yet, not admissible.

Furthermore, the computerized range-of-motion tests referred to in Dr. Dudelzak’s affirmations were not in admissible form because they were not affirmed by someone with personal knowledge of the facts (see Taylor v Flaherty, 65 AD3d 1328; see also Luna v Mann, 58 AD3d 699, 700; Washington v Mendoza, 57 AD3d 972). Without admissible evidence of quantified range-of-motion limitations contemporaneous with the accident, the plaintiffs could not have established the duration of the injuries required to raise a triable issue of fact as to whether they sustained a serious injury under the permanent consequential limitation or significant limitation of use categories of the no-fault law (see Kuchero v Tabachnikov, 54 AD3d at 730; Ferraro v Ridge Car Serv., 49 AD3d 498).”

The computerized range of motion testing is medically necessary because it is instrumental in meeting the serious injury threshold of the Insurance Law.  It was not admissible, however, because it was not properly affirmed.

Uncertified police report is inadmissible

Rivera v GT Acquisition 1 Corp., 2010 NY Slip Op 03158 (1st Dept. 2010)

“The motion court properly disregarded the uncertified police report and unauthenticated photographs as they constituted inadmissible hearsay”

In all fairness to Plaintiff, the courts have really been all over the place with the necessity of a police report to be certified.  On some days, they say it is admissible in accordance with CPLR 4518(a) because a foundation may be imputed based upon the duties of the police officer.  Other days, the courts have held that the police report contains admissions, which are admissible against the declarant.  Now today, they have held that an uncertified police report is inadmissible.

Go figure.

A family court non-payment of child support petition spurs an interesting 4518(a) case

Matter of Fortunato v Murray, 2010 NY Slip Op 03122 (2d Dept. 2010)

“Contrary to the Family Court’s general statement of the applicable law, “[a] physician’s office records, supported by the statutory foundations set forth in CPLR 4518(a), are admissible in evidence as business records. However, medical reports, as opposed to day-to-day business entries of a treating physician, are not admissible as business records where they contain the doctor’s opinion or expert proof” (Matter of Bronstein-Becher v Becher, 25 AD3d 796, 797 [internal quotation marks and citations omitted]; see Batts v Rutrick, 298 AD2d 417; Napolitano v Branks, 141 AD2d 705, 705-706). Moreover, a physician’s office records “may be received as evidence despite the fact that a physician is available to testify as to the substance and contents of the records” (Napolitano v Branks, 141 AD2d at 705-706; see Clarke v New York City Tr. Auth., 174 AD2d 268). Here, upon the father’s appeal of the Family Court’s order, this Court does not have the benefit of the actual medical documents in dispute since the documents are not part of the original papers before this Court. Thus, from the record, it is unclear whether the subject documents were the type which this Court views as admissible. Accordingly, we remit the matter to the Family Court, Nassau County, for a review by the Support Magistrate of the subject medical documents in light of and pursuant to the aforementioned standard as to admissibility.”

This case tells us a few things about business records and medical opinions.  First, day to records, i.e., soap notes, treatment logs, and other day to day documentationare admissible as business records.  As we also learned in Faust v. McPherson, 4 Misc.3d 89 (App. Term 2d Dept. 2004), an employee of the physician or the medical facility can lay this foundation.  Second, medical reports are admissible as business records except for the portion that contains “the doctor’s opinion or expert proof”.

Keep this in the back of your head when you are a plaintiff in an IME cut-off case and you want to have an expert opine on the medical records subsequent to the IME cut off.  As a defendant, keep your eyes open for when you see certain violations of the above-stated rule.

On the mark

IAV Med. Supply, Inc. v Progressive Ins. Co., 2010 NY Slip Op 50433(U)(Civ. Ct. Richmond Co. 2010)

Here is a civil court decision from Judge Dollard in Civil Richmond, which is well written and correct in all respects on the law.  First, she found that a 3101(d) demand, although tardy, was proper since plaintiff was not in any way prejudiced.   Second, she found that a claims representative could not lay a foundation for entry into evidence of the report of a a non-testifying peer review doctor.  Why someone would go down this road, especially with Pine Hollow being reversed, boggles my mind.  Moreover, I also tend to think that the admission of a peer report into evidence is tantamount to improper bolstering, since the report memorializes what the doctor – or his substitute – will testify about.  It is similar to a police officer telling a jury that the complainant identified the defendant, after the complainant herself identified the defendant to the jury.   Those of you who have a criminal practice know that this is improper.   People v Trowbridge, 305 NY 471 (1953).

As to whether the doctor, through his testimony satisfied his burden of persuasion, I have no idea; and for purposes of this discussion, it is irrelevant.  What is relevant, however, is the path this court took to reach its decision.  And this was “on the mark”.

An expert’s opinion that relies on an unsworn MRI report constitutes competent evidence

It is fascinating to see the resurgence of “footnote #5” in Pommels v. Perez.  What is more fascinating is that while an unsworn MRI report on its own may not be considered, the report of an examining physician who relies on this unsworn document is admissible.  Is it fair to opine that rank hearsay is made admissible through an expert’s reliance on the hearsay?

Does this make sense?  If so, then why?

See below:

Caulkins v Vicinanzo, 2010 NY Slip Op 01727 (3d Dept. 2010)

“In opposition to the motion, plaintiff submitted the affidavit of her expert, a licensed chiropractor, whose name was redacted. Initially, we agree with plaintiff’s assertion that Supreme Court erred in deeming the affidavit incompetent to the extent that the expert relied on unsworn MRI reports. While it is true that “[u]ncertified medical records and unsworn letters or reports are of no probative value” in opposing a summary judgment motion (Parmisani v Grasso, 218 AD2d 870, 872 [1995]; accord Lentini v Page, 5 AD3d 914, 916 [2004]), the Court of Appeals has instructed that a sworn medical opinion that relies on unsworn MRI reports constitutes competent evidence (see Pommells v Perez, 4 NY3d 566, 577 n 5 [2005]). Additionally, inasmuch as Vicinanzo’s expert quoted verbatim from, discussed and relied on the unsworn MRI reports in his affidavit, plaintiff’s expert was also entitled to rely upon them (see Pietrocola v Battibulli, 238 AD2d 864, 866 n 1 [1997]; see also Williams v Clark, 54 AD3d 942, 943 [2008]; Ayzen v Melendez, 299 AD2d 381, 381 [2002]).

An expert's opinion that relies on an unsworn MRI report constitutes competent evidence

It is fascinating to see the resurgence of “footnote #5” in Pommels v. Perez.  What is more fascinating is that while an unsworn MRI report on its own may not be considered, the report of an examining physician who relies on this unsworn document is admissible.  Is it fair to opine that rank hearsay is made admissible through an expert’s reliance on the hearsay?

Does this make sense?  If so, then why?

See below:

Caulkins v Vicinanzo, 2010 NY Slip Op 01727 (3d Dept. 2010)

“In opposition to the motion, plaintiff submitted the affidavit of her expert, a licensed chiropractor, whose name was redacted. Initially, we agree with plaintiff’s assertion that Supreme Court erred in deeming the affidavit incompetent to the extent that the expert relied on unsworn MRI reports. While it is true that “[u]ncertified medical records and unsworn letters or reports are of no probative value” in opposing a summary judgment motion (Parmisani v Grasso, 218 AD2d 870, 872 [1995]; accord Lentini v Page, 5 AD3d 914, 916 [2004]), the Court of Appeals has instructed that a sworn medical opinion that relies on unsworn MRI reports constitutes competent evidence (see Pommells v Perez, 4 NY3d 566, 577 n 5 [2005]). Additionally, inasmuch as Vicinanzo’s expert quoted verbatim from, discussed and relied on the unsworn MRI reports in his affidavit, plaintiff’s expert was also entitled to rely upon them (see Pietrocola v Battibulli, 238 AD2d 864, 866 n 1 [1997]; see also Williams v Clark, 54 AD3d 942, 943 [2008]; Ayzen v Melendez, 299 AD2d 381, 381 [2002]).

The first department is out of control

Yes, you read that title correctly.  Three bizarre decisions as of late, one which deals tangentially with no fault (Garcia v Leon, 2010 NY Slip Op 01538 [1st Dept 2010]), one which effects the safety of no-fault attorneys going to court in the bronx (People v Correa, 2010 NY Slip Op 01533 [1st Dept. 2010]) and one which effects the negligence case of a no-fault attorney (Tselebis v Ryder Truck Rental, Inc., 2010 NY Slip Op 01442 [1st Dept 2010]) have been decided by the First Department.

Garcia is completely at odds with conflicting Second Department precedent inasmuch as it affirmatively allows for hearsay evidence to be used to defeat a summary judgment motion as set forth herein: “[t]he affidavit of her treating chiropractor, taken in conjunction with her medical experts’ unsworn statements and her MRI tests, raises questions as to whether her shoulder and cervical and lumbar spinal injuries are permanent or significant, and not merely preexisting, degenerative, or caused by a subsequent 2007 accident (see Liriano v Ostrich Cab Corp., 61 AD3d 543 [2009]; Hammett v Diaz-Frias, 49 AD3d)”

Correa ruled that former Chief Judge Judith Kaye’s creation of a Supreme Court, criminal division, in the Bronx, which had original jurisdiction over both misdemeanor and felony cases, was unconstitutional.  Thus, many violent misdemeanants’ convictions are being vacated.  Look both ways before you cross the street because Rikers is being emptied.  I am being facetious by the way.  Finally, Tselebis takes the notion of summary judgment and I think turns it into an evidentiary fact finding device, contrary to the purpose of the summary disposition statute, but consistent with the modern view of the summary judgment motion, i.e., a trial on papers.