Couldn't get it right the second time around

Central Radiology Servs., P.C. v MVAIC, 2010 NY Slip Op 50887(U)(App. Term 2d Dept. 2010)

“During oral argument, the Civil Court granted defendant leave to submit a supplemental affidavit with respect to the mailing of defendant’s denial of claim form. By order entered April 1, 2009, the court granted defendant’s motion for summary judgment and denied plaintiff’s cross motion.

This appeal by plaintiff ensued.   A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]). Defendant did not send IME scheduling letters to plaintiff’s assignor. Rather, defendant utilized a third party, Medical Consultants Network (MCN), to schedule IMEs on behalf of defendant. The letters upon which defendant relies were sent by MCN and addressed to defendant, not plaintiff’s assignor, and stated that the purpose of the letters was to “confirm” that defendant had requested examinations of plaintiff’s assignor on specified dates. MCN’s customer service representative averred that MCN had sent a “carbon copy” of this letter to plaintiff’s assignor. Contrary to defendant’s contention, such letters were not proper requests for verification which tolled defendant’s time to pay or deny plaintiff’s claim (Insurance Department Regulation [11 NYCRR] § 65-3.8).”

Mistakes happen.  We are all guilty of them.  Clearly, the wrong letters were placed in the MSJ, Defendant accidentally won and now the defendant is being called on it.  I would have settled this during the CAMP conference, paid the settlement myself and told the client: “sorry”.

Couldn’t get it right the second time around

Central Radiology Servs., P.C. v MVAIC, 2010 NY Slip Op 50887(U)(App. Term 2d Dept. 2010)

“During oral argument, the Civil Court granted defendant leave to submit a supplemental affidavit with respect to the mailing of defendant’s denial of claim form. By order entered April 1, 2009, the court granted defendant’s motion for summary judgment and denied plaintiff’s cross motion.

This appeal by plaintiff ensued.   A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]). Defendant did not send IME scheduling letters to plaintiff’s assignor. Rather, defendant utilized a third party, Medical Consultants Network (MCN), to schedule IMEs on behalf of defendant. The letters upon which defendant relies were sent by MCN and addressed to defendant, not plaintiff’s assignor, and stated that the purpose of the letters was to “confirm” that defendant had requested examinations of plaintiff’s assignor on specified dates. MCN’s customer service representative averred that MCN had sent a “carbon copy” of this letter to plaintiff’s assignor. Contrary to defendant’s contention, such letters were not proper requests for verification which tolled defendant’s time to pay or deny plaintiff’s claim (Insurance Department Regulation [11 NYCRR] § 65-3.8).”

Mistakes happen.  We are all guilty of them.  Clearly, the wrong letters were placed in the MSJ, Defendant accidentally won and now the defendant is being called on it.  I would have settled this during the CAMP conference, paid the settlement myself and told the client: “sorry”.

Ime reports are entitled to qualified privilege against defamation claim

In the latest saga involving IME’s, the question arose as to whether an examinee could prosecute a defamation action against the examiner or any other entity involved with the publication of the alleged defamatory statement.  The answer is yes, however, the examinor or any other entity involved with the publication of the alleged defamatory statement enjoys a qualified privilege.

In Green v Combined Life Ins. Co. of N.Y., 2010 NY Slip Op 00572 (1st Dept. 2010), the Appellate Division observed the following:  “Plaintiff alleges he was defamed by defendant Downie’s written report to the insurer defendants of his interview with and examination of plaintiff. Even if defamatory, the statements are protected by a qualified privilege because they were made in a medical report to the insurer”

For those of you who have not had the misfortune of being involved in a defamation action, a qualified privilege offers protection to the speaker, scrivener or publisher of a defamatory comment, provided that the comment was not made with actual malice (see, New York Times v. Sullivan) or common law malice.

The performance of diagnostic testing as part of an IME

I could definitely see situations where it might be appropriate for an insurance carrier, as part of an IME, to demand that a claimant undergo a non-invasive diagnostic test at a facility of the insurance carrier’s choosing in order to assist the carrier to determine the medical reasonableness of future surgeries and other potentially invasive procedures.   For instance, many of you might remember the piece the New York Times wrote last year regarding outdated MRI machines that are still in use, which are unable to fully and accurately delimit the actual locus and extent of an injury.  If you forgot about that article, it is on this blog.  I also recall Judge Viscovich’s decision in Complete Medical Care Svs., P.C. v. State Farm Mut. Auto. Ins.Co., 21 Misc.3d 436 (Civ. Ct. Queens Co. 2008) in which he decided that an EMG/NCV test was determined to be medically necessary, notwithstanding the uncontroverted evidence that it was improperly performed.

Clearly, from the standpoint as to whether further surgeries or further invasive treatment is necessary, a properly performed diagnostic test, using a modern and functioning machine, with a competent technician, might very well be helpful in determining a Claimant’s true clinical picture.

Enter the matter of Rosario v BNS Bldgs., LLC 2009 NY Slip Op 08801 (2d Dept. 2009), which tangentially discussed this issue in the context of a third-party action:

“Under the circumstances, where, inter alia, the plaintiff established that the proposed medical testing was potentially dangerous (cf. Lefkowitz v Nassau County Med. Ctr., 94 AD2d 18, 21), the Supreme Court properly denied that branch of the defendants’ motion which was to compel her to submit to the proposed testing (see Santero v Kotwal, 4 AD3d 464, 465; Bobka v Mann, 308 AD2d 497, 498; Marino v Pena, 211 AD2d 668, 668-669).”

Read the bold case, supra, and you will see that under the appropriate circumstances, this type of an IME might be proper.

IME No-Show – Personal Knowledge

For those who are unsure what satisfies the “personal knowledge” prong of an IME no-show defense, the Appellate Term in uncharacterstic fashion spelled it out:

Radiology Today v. Geico Ins. Co. 2009 NY Slip Op 52208(u)(App. Term 2d Dept. 2009).

“The affirmations and affidavits of the medical professionals who were to perform the IMEs established that plaintiff’s assignor failed to [*2]appear for said IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Tuncel v Progressive Cas. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2008]).”