The Appellate Term finds the defense of lack of medical necessity was not substantiated

Progressive Med., Inc. v Allstate Ins. Co., 2010 NY Slip Op 50219(U)(App. Term 2d Dept. 2010):

“On cross-examination, the witness testified that he relied on several out-of-court documents in reaching his conclusion. He also testified that, in his report, he referred to a report from his board- certifying academy regarding one type of equipment at issue. Although plaintiff had previously stipulated to qualifying the witness as an expert, its attorney subsequently objected to this testimony on the ground that it was based upon records that were not in evidence and upon a study, the reliability of which had not been established. The court sustained the objection and ordered the testimony stricken.

“Based upon the court’s statements that the only issue for trial was medical necessity and that a claim form had been submitted and timely denied, as well as defendant’s presentation of its witness instead of moving for judgment pursuant to CPLR 4401, we find that the parties agreed that the sole issue for trial was defendant’s defense of lack of medical necessity. The record [*2]reveals no basis, under the specific facts of this case, for the court’s finding that plaintiff was required to submit a claim form in order to establish, prima facie, “the health benefit’s medical necessity.”

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.”

It looks like the attorney for the defense failed to lay a proper foundation to allow the doctor to testify about the medical records.  What needed to be asked was: how the doctor received the records; what they represented; whether the assignor’s name was on the records; whether the date of loss on the records corresponded to when the accident occurred; whether the claim number on the documents matched the actual claim number;  whether there was other information that would correlate the documents to the assignor; and the veracity of the journal articles.

The courts in the realm of no-fault litigation will generally allow an expert to testify about the documents that purport to be those representing the treatment of the alleged assignor.  The only thing an attorney has to do is find some correlating link between the medical reports and the assignor.  That link is almost always in the reports.  If the link is not there, then look further – you should find it.  If you cannot find that link at all, then the doctor probably did not review the entire medical record, and this is rife with its own issues, none of which are good for the insurance carrier.

This case also asks the following question: how can a medical necessity summary judgment motion be made without annexing the medical records?  Presumably, the attached medical records allow for the inference that they represent the treatment notes of the alleged assignor.  Without those notes, it looks like a peer review by itself must fail on constraint of this case and the others I have previously discussed.

Business records and admissions

An interesting case from the First Department came out on this topic.   It it discussed on the evidence blog.  It is worth a read.  Click here.

The admission of an assignor against the assignee is sufficient to conditionally dismiss plainitiff's action

Ortho Pro Labs, Inc. v American Tr. Ins. Co., 2009 NY Slip Op 52693(U)(App. Term 2d Dept. 2009)

“In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, upon a motion by defendant for summary judgment dismissing the complaint, stayed the action pending an application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. The sole issue raised by plaintiff on appeal is whether defendant proffered sufficient evidence to demonstrate the existence of an issue of fact as to whether plaintiff’s assignor was injured while acting within the course of his employment.

The application for no-fault benefits form, which was signed by plaintiff’s assignor under penalty of perjury, states that the assignor was in the course of his employment when he was injured, an admission that is “sufficient to raise a question of fact as to whether the assignor was acting as an employee at the time of the accident. . ., which issue must be resolved in the first [*2]instance by the [Workers’ Compensation] Board”

According to this opinion, the admission of of an assignor is imputable to the assignee.  Furthermore, this admission  may be used as prima facie evidence in support of a motion for summary judgment.  Compare, CPT Medical Service, P.C. v. Utica Insurance Company, 12 Misc.3d 237 (Civ. Ct. Queens Co. 2006).  Very interesting.

The admission of an assignor against the assignee is sufficient to conditionally dismiss plainitiff’s action

Ortho Pro Labs, Inc. v American Tr. Ins. Co., 2009 NY Slip Op 52693(U)(App. Term 2d Dept. 2009)

“In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, upon a motion by defendant for summary judgment dismissing the complaint, stayed the action pending an application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. The sole issue raised by plaintiff on appeal is whether defendant proffered sufficient evidence to demonstrate the existence of an issue of fact as to whether plaintiff’s assignor was injured while acting within the course of his employment.

The application for no-fault benefits form, which was signed by plaintiff’s assignor under penalty of perjury, states that the assignor was in the course of his employment when he was injured, an admission that is “sufficient to raise a question of fact as to whether the assignor was acting as an employee at the time of the accident. . ., which issue must be resolved in the first [*2]instance by the [Workers’ Compensation] Board”

According to this opinion, the admission of of an assignor is imputable to the assignee.  Furthermore, this admission  may be used as prima facie evidence in support of a motion for summary judgment.  Compare, CPT Medical Service, P.C. v. Utica Insurance Company, 12 Misc.3d 237 (Civ. Ct. Queens Co. 2006).  Very interesting.

The admissibility of an EUO and the applicability of CPLR 3212(f)

RLC Med., P.C. v Allstate Prop. & Cas. Ins. Co., 2009 NY Slip Op 52691(U)(App. Term 2d Dept. 2009)

“Defendant denied Craigg’s $269.60 claim based upon the assignor’s EUO testimony. Since the purported EUO transcript annexed to defendant’s opposition papers is not in admissible form, we decline to consider it. Accordingly, Craigg was entitled to summary judgment upon said claim.”

Question: Why was it not in admissible form?  My thought is that Defendant annexed to her papers the condensed EUO  that was not certified by the stenographer.  Not good.

Same case:

“In opposition to plaintiffs’ motion, defendant established that while facts may exist that are essential to justify denial of the branch of the summary judgment motion seeking to recover upon claims submitted by RLC, defendant was unable to set forth sufficient facts to establish the defense of fraudulent incorporation (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) since such information was within RLC’s possession and RLC had not complied with defendant’s discovery demands therefor (see CPLR 3212 [f]). Consequently, the District Court properly denied the branch of the motion for summary judgment upon the claims submitted by RLC….”

CPLR 3212(f) again.  Dave Gottlieb over at NFP and on his CPLR blog has detailed this subdivision of the summary disposition statute for some time.  In New York practice, it usually takes a really good reason to deny a summary judgment motion without prejudice, in accordance with subdivision (f) of Rule 3212 of the CPLR.  In no-fault and 5102(d) threshold practice, subdivision (f) is successfully invoked as a matter of course in the case of a Mallela violation or when a Plaintiff moves on the basis that he or she sustained a serious injury prior to the performance of Defendant’s IME’s.

Outside of these two situations, the usual trend is to deny a CPLR 3212(f) application.  Here is a prime example – Delta Radiology, P.C. v. Interboro Insurance Company, 25 Misc.3d 134(A)(App. Term 2d Dept. 2009):

“Contrary to defendant’s contention, although plaintiff’s claim was submitted more than 45 days after the services at issue were rendered, defendant waived its reliance on the 45-day rule (Insurance Department Regulations [11 NYCRR] § 65-1.1) as a basis to deny the claim because defendant had failed to communicate to plaintiff, as required by the No-Fault Regulations, that late submission of the proof of claim will be excused where the applicant can provide a reasonable justification for the late submission ( see Insurance Department Regulations [11 NYCRR] § 65-3.3[e]; SZ Med. P.C. v. Country-Wide Ins. Co., 12 Misc.3d 52 [App Term, 2d & 11th Jud Dists 2006] ). Further, defendant failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact ( see CPLR 3212[f] ).”

A civil court judge correctly rejects a so-called Wagman based peer hearsay challenge

While I do not generally discuss Civil Court decisions, the one of Judge Levine in the matter of Popular Imaging, P.C. v State Farm Ins. Co., 2009 NY Slip Op 52355(U)(Civ. Ct. Richmond Co. 2009) is interesting in that it describes how a peer hearsay challenge at trial is lodged, presented, adjudicated and defeated.

“At the outset of Dr. Sarno’s testimony, plaintiff refused to stipulate into evidence the peer review report prepared by and medical records reviewed by Dr. Sarno, contending that this court should not consider Dr. Sarno’s opinion since it was based upon medical records and reports that were not in evidence and for which no evidence was submitted as to their reliability. pursuant to the leading case of Wagman v. Bradshaw, 292 AD2d 84 ( 2d Dpt 2002). The court reserved decision on this objection to Dr. Sarno’s testimony.”

“Here, the assignor’s physician, Dr. Fleisher , recommended that a MRI be performed; this is confirmed by Dr. Fleisher’s records. Dr. Sarno testified that in formulating an opinion he relied primarily upon Dr. Fleisher’s August 23, 2002 report of his neurological consultation with the assignor and Dr. Fleisher’s EMG/NCV testing of September 13, 2002. Since plaintiff performed the MRI based upon the records and referral from the assignor’s treating physician, who apparently deemed the test to be medically necessary, and since plaintiff sent the results and explanation of the MRI back to Fleisher, plaintiff cannot now be heard to challenge the reliability and authenticity of Dr. Fleisher’s records.

As to the requirement that the material be generally accepted in the profession as reliable and there be evidence establishing its reliability, Dr. Sarno testified that these are the types of reports that a doctor would review to offer an opinion on the necessity of a lumbar MRI. Dr. Sarno uses other doctors’ reports in formulating a medical opinion about his own patients and that it is a generally accepted standard in the medical profession to form an opinion based in part on other doctors reports. He testified that he takes these reports at face value. Dr. Sarno’s testimony is consistent with set precedent that a physician’s office records are admissible as evidence at trial to the extent they are germane to diagnosis and treatment.”

I would even opine that based upon Pan Chiropractic v. Mercury and PLP Acupuncture v. Progressive, all that needs to be proved is that the Plaintiff Assignor who is described on the medical documents has the same name as the assignor who is the subject of the lawsuit. Upon this minimal showing, Plaintiff would then be estopped from challenging the reliability of the assignor’s medical records that the peer or ime doctor reviewed.  This should end the peer hearsay challenge at that point.

Of course, Plaintiff could always make an offer of proof, through the introduction of extrinsic evidence, to show that the records are not what they purport to be.  I am not sure how this showing would realistically be met in an assigned first-party case.

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.

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.

Wagman?

In the matter of PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 2009 NYSlipOp 50491(U)(App. Term 2d Dept. 2009) http://www.courts.state.ny.us/reporter/3dseries/2009/2009_50491.htm, the Appellate Term observed the following:

Defendant’s affirmed peer review report and the affidavit of its peer review acupuncturist established prima facie that there was no medical necessity for the services provided by plaintiff. We note that as some of the medical reports relied upon by defendant’s acupuncturist in his peer review report were prepared by plaintiff, plaintiff could not challenge the reliability of its own medical records and reports (see Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10 [App Term, 1st Dept 2006]; see also Home [*2]Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept 2007]). Furthermore, since it has been held that an “expert witness’s testimony of reliance upon out-of-court material to form an opinion may be received in evidence, provided there is proof of reliability” (Wagman v Bradshaw, 292 AD2d 84, 85-86 [2002]), the fact that defendant’s peer reviewer relied upon medical reports from other medical providers in forming his opinion as to the medical necessity of the service performed does not render the peer review report insufficient to establish a lack of medical necessity.

Two observations:

1) There was no reason to reach, rely or discuss Wagman. It is hornbook law that the Defendant may use the Plaintiff’s [whether it be assignor or assignee] medical records against him or his assignee. I have dedicated numerous posts on this point.

2) Can Plaintiffs in threshold cases get around the current requirement that the reports their experts rely on be “affirmed” or “sworn to”, because of the Appellate Term’s interpretation of Wagman?

3) Has the spill-over effect of no-fault litigation once again contaminated other areas of law?

Dangerous case. Proper result, poorly reasoned.

Written opposition – the key to beating people on procedural defects

Perhaps one of the most obnoxious things in this area of law is that firms attempt to “amplify” their respective positions through oral argument. This occurs in two scenarios: (1) A party orally argues a motion without written opposition; and (2) A party amplifies their position during oral argument through raising new objections not raised in their papers.

Dave Barshay said it best in an analogous situation: “Unobjected to hearsay is competent evidence”

Similarly, unobjected to procedural defects render incompetent evidence competent. There are certain courts that routinely entertain these type of oral objections.

With that in mind, let us look at:

Complete Orthopedic Supplies, Inc. v State Farm Mut. Auto. Ins. Co.
2009 NYSlipOp 29014 (App. Term 2d Dept. 2009)

The Civil Court held that defendant failed to establish that its denial of claim forms were timely mailed because the notary public’s jurat, on the affidavits of mailing executed by defendant’s claims support services supervisor and the president of the courier service utilized by defendant, did not indicate the year in which the affidavits were signed. However, this technical [*2]defect is of the type which a court should disregard since it does not prejudice a substantial right of a party, particularly, where as here, plaintiff raised no objection thereto.

I shall say no more.