“Kids, dont try this at home”

I got that line from another blogger. That comment refers to a case that is anything but remarkable.

Although there was a long and very thoughtful dissent on what the probably should be, the majority made two salient points.

Continental Med., P.C. v Mercury Cas. Co.
2009 NYSlipOp 50234(U)(App. Term 2d Dept. 2009)

“Although chiropractors may not affirm pursuant to CPLR 2106 this defect was waived since plaintiff failed to object in the court below. As a result, the IME report proffered by defendant established defendant’s prima facie entitlement to summary judgment on the ground that the services rendered to plaintiff’s assignor were not medically necessary”

“In opposition, plaintiff proffered an unsworn medical report which was “dictated but not read.” Thus, it was of no probative value. Inasmuch as plaintiff failed to rebut defendant’s prima facie case, defendant’s motion for summary judgment dismissing the complaint should have been granted”

I think, and this is just me, but New York should follow the Federal and New Jersey model where a party can submit a “certification”, which would have the same force and effect as an affidavit. In the criminal realm, this is done all the time. But the law is what it is…

Med Mal and Procedural case

This is similar to the cases where a peer doctor fails to review sufficient documentation before arriving at an opinion.

“Lack of Foundation to form an expert opinion”

Luu v Paskowski
2008 NY Slip Op 10135 (2d Dept. 2008)

The pertinent portion of this case is as follows:

“[Plaintiff’s expert] Zola did not refer to any part of the hospital records, and did not state when the blood loss occurred or how it caused the small bowel obstruction and hematoma. Zola made no reference to any of the hospital records in his affidavit, and did not state that he had reviewed the pleadings and depositions. Zola’s affidavit was conclusory and lacked a foundation (see Thompson v Orner, 36 AD3d at 792; Furey v Kraft, 27 AD3d at 418).

Procedural – default viz a vi failure to obtain an adjournment on the record

Diamond v Diamante
2008 NY Slip Op 10117 (2d Dept. 2008)

“plaintiffs and their attorney, nonparty James D. Reddy, appeal from a judgmentwhich, inter alia, upon the denial of the plaintiffs’ application for an adjournment, is in favor of the defendants and against the plaintiff, dismissing the complaint, and against the nonparty James D. Reddy awarding costs and imposing sanctions.”

“Where, as here, the order appealed from was made upon the plaintiffs’ default, “review is limited to matters which were the subject of contest below” (Matter of Constance P. v Avraam G., 27 AD3d 754, 755 [internal quotations marks omitted]; see James v Powell, 19 NY2d 249, 256 n 3; Wexler v Wexler, 34 AD3d 458, 459; Brown v Data Communications, 236 AD2d 499). [*2]Accordingly, in this case, review is limited to the denial of the plaintiffs’ request for an adjournment, on the appeal by the plaintiffs, and the award of costs and imposition of sanctions against nonparty James D. Reddy, on the appeal by the nonparty (see Matter of Paulino v Camacho, 36 AD3d 821, 822; Tun v Aw, 10 AD3d 651, 652).

Turning to the merits, “[t]he granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court” (Matter of Anthony M., 63 NY2d 270, 283; see Matter of Steven B., 6 NY3d 888, 889; Matter of Sicurella v Embro, 31 AD3d 651, lv denied 7 NY3d 717), and its determination will not be disturbed absent an improvident exercise of that discretion (see Davidson v Davidson, 54 AD3d 988). “In making such a determination, the court must undertake a balanced consideration of all relevant factors” (Matter of Sicurella v Embro, 31 AD3d at 651), including “the merit or lack of merit of the action, extent of the delay,” the number of adjournments granted, the “lack of intent to deliberately default or abandon the action” and the length of the pendency of the proceeding (Belsky v Lowell, 117 AD2d 575, 576; see Matter of Claburn v Claburn, 128 AD2d 937, 938).”

The future is bright for medical necessity msj's

Again, this is not necessarily a pure no-fault post. However, this is a no-fault post by analogy. I came across a doosy of a decision and order from the Appellate Division, Second Department. It kind of cuts both ways on two different issues. Hopefully you will see where I am going with this, after you see the excepts I am publishing.

Geffner v North Shore Univ. Hosp.
2008 NY Slip Op 10124 (2d Dept. 2008)

To support her allegations [of medical malpractice and in opposition to Defendant’s motion for summary judgment], the plaintiff submitted the expert affidavit of Charles Phillips, a physician certified in emergency medicine. Dr. Phillips’ affidavit was of no probative value, however, as it contained opinions outside his area of expertise and did not establish a foundation for his opinions (see Glazer v Choong-Hee Lee, 51 AD3d 970; Mustello v Berg, 44 AD3d 1018, 1018-1019; Behar v Coren, 21 AD3d 1045, 1046-1047)….”

“Finally, the plaintiff submitted the expert affirmations of Howard C. Adelman, a physician certified in clinical pathology and cytopathology, which alleged that the defendant doctors misdiagnosed the decedent as suffering from myelodysplastic syndrome, acute myeloid leukemia, and adenocarcinoma. Dr. Adelman’s affirmations were insufficient to raise a triable issue of fact with respect to the alleged misdiagnoses since they failed to address the evidence relied upon by North Shore’s experts in rendering their opinions that the diagnoses were correct (see Germaine v Yu, 49 AD3d 685, 687; Fhima v Maimonides Med. Ctr., 269 AD2d 559, 560).

Issue #1: Doctors who give opinions outside their scope of expertise.

This is a problem, however, an accounting of their skills and expertise should get one of the trouble that was wrought in this cae

Issue #2: Failure to address movant’s proof.

Big problem in no-fault litigation.

Escaping the four corners of the denial

At this point in our PIP jurisprudence, it has been taken for granted that a defense of medical necessity extends to the four corners of the peer review or the medical examination which recommends cessation of treatment.

The foundation for the principle appears in 11 NYCRR Sec. 65-3.8(a)(4), which states the following: “If the specific reason for a denial of a no-fault claim, or any element thereof, is a medical examination or peer review report requested by the insurer, the insurer shall release a copy of that report to the applicant for benefits, the applicant’s attorney, or the applicant’s treating physician, upon the written request of any of these parties.”

In construing this regulation, the Appellate Division observed in A.B. Medical Services, PLLC v. Liberty Mut. Ins. Co. 39 A.D.3d 779 (2d Dept. 2007): “The applicable regulations provide that if a no-fault claim is denied in whole or in part based on a medical examination or peer review report requested by the insurer, then the insurer shall release a copy of that report to, among others, the applicant or its attorney, upon written request. Had it been the intent of the Department of Insurance to require the carrier to set forth a medical rationale in the prescribed denial of claim form, it would have so provided”

Thus, it is has been assumed that the the peer or IME is an extension of the denial. This was the methodology behind the Appellate Term, Second Department’s holding in A.B. Medical Services, PLLC v. Liberty Mut. Ins. Co. 10 Misc.3d 128(A)(App. Term 2d Dept. 2005), prior to it being reversed by the Appellate Division, Second Department. See, 39 AD3d 779. In fact, all the Appellate Division really said was that the peer report or IME report does not have to be annexed to the denial.

Therefore, recent Appellate Term, First Department cases are quite questionable. In Mollins v Allstate Ins. Co. 20 Misc 3d 141(A)(App. Term 1st Dept. 2008), the Appellate Term, stated the following: “In opposition, defendant failed to raise a triable issue since it did not submit the IME report upon which its denials were based or any other evidentiary proof to support its defense of lack of medical necessity (see Vista Surgical Supplies, Inc. Travelers Ins. Co., 50 AD3d 778 [2008]; Response Med. Equip. v General Assur. Co., 13 Misc 3d 129[A], 2006 NY Slip Op 51765[U] [2006]).

And the Appellate Term case, Response Med. Equipment said the following: “With respect to the $650 claim for assignor Edwin Milanes, defendant failed to support its defense of lack of medical necessity with the peer review upon which the denial was based, or any other competent proof in admissible form.”

It therefore appears arguable that an insurance carrier may escape the four corners of the denial, as amplied by the peer review and denial. It should be interesting to see how the Appellate Term, First Department and the other courts rule when the “Cerucci” four corner rule collides with the “other competent proof in admissible form” rule.