Prima facie case

J.C. Healing Touch Rehab, P.C. v Amica Mut. Ins. Co., 2014 NY Slip Op 50969(U)(App. Term 2d Dept. 2014)

“While the supporting affidavit by plaintiff’s billing agent established that plaintiff had mailed the claim forms in question to defendant, and that defendant had failed to pay those claims within the requisite 30-day period, the affidavit failed to demonstrate either that defendant had failed to deny the claims within the requisite 30-day period or that defendant had issued timely denial of claim forms which were conclusory, vague or without merit as a matter of law. As plaintiff failed to meet its initial burden of establishing its prima facie entitlement to judgment as a matter of law, plaintiff’s motion for summary judgment was properly denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33).”

The medical provider still needs to allege that it never received a denial, the denial was untimely, or the received denial is defective.  Etienne did not change that part of Plaintiff’s prima facie case.

Motion to strike “3212(g) findings” denied

EMC Health Prods., Inc. v Geico Ins. Co., 2014 NY Slip Op 50786(U)(App. Term 2d Dept. 2014)

“On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor. Defendant’s denials admitted the receipt of the bills at issue (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U]; [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]), and plaintiff was not required to establish a CPLR 4518 foundation for the bills (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]).”

Here is the unanswered question.  Can a Plaintiff appeal the finding of a judge who refuses to make these 3212(g) findings?

A prima facie case – not too much needed

Peace of Mind, Social Work, P.C. v Travelers Aetna Prop. Cas. Corp., 2014 NY Slip Op 50475(U)(App. Term 2d Dept. 2013)

“The sole witness was plaintiff’s third-party biller.”

“Pursuant to the holding in Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. ( ___ AD3d ___, 2013 NY Slip Op 08430 [2d Dept 2013]), the testimony of plaintiff’s witness was sufficient to establish plaintiff’s prima facie case. As defendant failed to proffer a defense, the judgment is affirmed”

Prima Facie post Etienne

Eagle Surgical Supply, Inc. v Allstate Ins. Co., 2014 NY Slip Op 50343(U)(App. Term 2d Dept. 2014)

Method (1): The biller and the NF-10 –

Plaintiff sufficiently established that the NF-10 denial of claim form that it was trying to introduce into evidence was the denial of claim form that it had received from defendant, which referenced the claim form at issue in this action. Contrary to the ruling of the Civil Court, plaintiff should have been allowed to use that denial to demonstrate that the claim form in question had been submitted to defendant (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). In such a case, a plaintiff is not trying to use the denial as the plaintiff’s own business record pursuant to CPLR 4518 (a); instead, in this context, the denial is being used as an admission by the defendant that the claim form had been received.

Method 2 would be Interrogatories and Notices to Admit

Method 3 would be the claims representative admitting to receipt of the bills through the denial and lack of payment of the bill.

It is 2003 all over again.

Summary judgment is limited to what is pleaded upon the moving papers

 

“Here, in light of the limited basis of the plaintiff’s motion for summary judgment on the complaint, which was premised solely on the defendant’s alleged failure to timely pay or deny the no-fault claim within 30 days of receipt of proof of the claim (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1], [c]), “the defendant’s only burden in opposition . . . was to raise a triable issue of fact regarding its timely . . . denial of the [plaintiff’s] claim” (Lenox Hill Hosp. v Government Empls. Ins. Co., 89 AD3d 905, 905; see Viviane Etienne Med. Care, P.C., v Country-Wide Ins. Co., _____ AD3d _____, 2013 NY Slip Op 08430 [2d Dept 2013]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081, 1082-1083). In opposition to the plaintiff’s prima facie showing of entitlement to judgment as a matter of law, the defendant satisfied its burden by raising a triable issue of fact as to whether it did in fact mail a proper NF-10 denial of claim form to the plaintiff only 22 days after its receipt of the claim verification that it had previously requested”

This shift has been years in the making, based upon the Westchester-Liberty case that came out a few years ago.  To reach the merits of the defense, the plaintiff needs to show the defense lacks merit.  Thus on medical necessity case, plaintiff must affirmatively show that the service is medially appropriate; On a DWI case (which this case was), Plaintiff must show that Defendant was not drunk or that the intoxication was not a proximate cause of the loss.  It is an interesting standard and, in practice, the only reason a plaintiff moves for summary judgment is to establish its prima facie case.  CPLR 3212(g).  I wonder when the Appellate Division will (if ever) reach this discrete issue.

Lost wage claim requires affirmative proof of disability

Gordon v Chubb Group of Ins. Co., 2014 NY Slip Op 00894 (1st Dept. 2014)

The trial court found plaintiff not credible on the issue of mailing of the claim in January 1999, and since there is no documentary proof of such a mailing, there exists no basis to disturb the court’s finding that the claim was not sent before June 1999 (see generally 300 E. 34th St. Co. v Habeeb, 248 AD2d 50, 54 [1st Dept 1997]). The various elements of lost income were properly denied as speculative, given the conflicting evidence as to plaintiff’s income, and the lack of any medical testimony linking his disability to his inability to work (see Razzaque v Krakow Taxi, 238 AD2d 161, 162 [1st Dept 1997]).

Because defendant’s denial of coverage was timely, even if improper, the trial court correctly awarded interest from commencement of the action, at the rate of 2% simple interest per month (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 871 [2003]).”

(1) There is a need to prove through medical testimony a disability preventing a Claimant from working;

(2) Lost income must be proven through non-speculative sources.

There is such a dearth of case law on the issue of lost wages.  Again, this is because a vast majority of these claims alwas been resolved through arbitration.  This is in contrast to first-party benefit claims that have traditionally been handled through litigation.

Prima facie again

Nyack Hosp. v Allstate Ins. Co., 2014 NY Slip Op 00641 (2d Dept. 2014)

(1) “By failing to timely contest, at the claims stage, the adequacy of the claim forms used by the plaintiff Richmond University Medical Center, as assignee of Arnold Sealey, to establish proof of claim, the defendant waived its right to rely on any deficiencies in those forms at the litigation stage”

(2) “Accordingly, by submitting evidence in admissible form that the prescribed statutory billing form had been mailed to and received by the defendant insurer, which failed to either pay or deny the claim within the requisite 30-day period, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the second cause of action”

I am wondering what deficiency Defendant raised.  I also note that the Court again commented on this when it noted in passing that: “[d]efendant does not contend on appeal that it raised a triable issue of fact in opposition to the plaintiffs’ prima facie showing, but only that the plaintiffs failed to meet their prima facie burden.”  This Court is so hard to read sometimes through the innuendo that is at times used.

Another formulation of a prima facie case

New York Hosp. Med. Ctr. of Queens v Allstate Ins. Co.,  2014 NY Slip Op 00640 (2d Dept. 2014)

“The plaintiffs’ submissions included a postal receipt indicating that the prescribed NF-5 statutory billing form corresponding to the no-fault claim at issue, and related documents, were received by the defendant on May 26, 2011.  The person who mailed the NF-5 form averred, in support of the plaintiffs’ motion, that the defendant neither paid nor properly denied the claim within 30 days. This initial showing was sufficient to demonstrate the plaintiffs’ prima facie entitlement to judgment as a matter of law on the first cause of action

Here, Plaintiff mailed the billing and there was affirmative proof of lack of a proper denial.  In the old days, Hospital would only have had shown mailing of the billing and 30-days elapsed.

Another prima facie case – refining Etienne

New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 2014 NY Slip Op 00639 (2d Dept. 2014)

“The plaintiffs made a prima facie showing of entitlement to judgment as a matter of law on the second cause of action, which related to the claim submitted by Westchester Medical Center in connection with the injuries allegedly sustained by its assignor, Robert de los Santos, by submitting evidence that the prescribed statutory billing form had been mailed to and received by the defendant insurer, which failed to either pay or deny the claims within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co.,AD3d, 2013 NY Slip Op 08430 [2d Dept 2013];Westchester Med. Ctr. v Hereford Ins. Co., 95 AD3d 1306, 1306-1307; Westchester Med. Ctr. v Lancer Ins. Co., 94 AD3d 984, 984; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081, 1082). A medical provider is not required, as part of its prima facie showing, to demonstrate the admissibility of its billing records or to prove the truth of their content under the business records exception to the hearsay rule (see CPLR 4518[a]; Viviane [*2]Etienne Med. Care, P.C. v Country-Wide Ins. Co.,AD3d, 2013 NY Slip Op 08430, *6 [2d Dept 2013]). In opposition to the plaintiffs’ showing in connection with the second cause of action, the defendant failed to raise a triable issue of fact as to whether it properly requested further verification of that claim”

Again, note that this new formulation of a prima facie stands true to the Westchester v. Liberty rule that the medical provider must prove the absence of a timely denial, the defective nature of the denial, or the affirmative merits of the claim, e.g.., the services were medically necessary, the EIP showed up to the IME, the bills were in accordance with the fee schedule.  I cannot stress enough that this is not a return to the Mary Immaculate v. Allstate glory days where “Defendant established Plaintiff’s prima facie case”.  They won the business record dispute, but lost the need to only show a bill is overdue to shift the burden.

 

First Application of Etienne

Westchester Med. Ctr. v Allstate Ins. Co., 2013 NY Slip Op 08616 (2d Dept. 2013)

“Contrary to the primary argument advanced by the defendant insurance company, the plaintiff Westchester Medical Center, as assignee of Paul Knable (hereinafter the hospital), made a prima facie showing of entitlement to judgment as a matter of law on the first cause of action (see Viviane Etienne Medical Care, P.C., as assignee of Alem Cardenas v Country-Wide Ins. Co., _______ AD3d _______ [2013 Slip Op 08430 [2d Dept 2013]).  In opposition, the defendant failed to raise a triable issue of fact as to whether, after receiving the hospital’s NF-5 claim form, the 30-day period within which to pay, deny, or seek verification of the no-fault claim was extended or tolled indefinitely due to the hospital’s failure to comply with a certain request for verification.”

I am thinking Plaintiff presented the billing affidavit of one of its affiants who either said the he submitted the entire medical records of the hospital or that he never received any verification requests.  This is different from Mary Immaculate v. Allstate and Amaze v. Eagle days where all the affiant had to say was that more than 30-days elapsed and payment in full has not been made.  I think the plaintiff bar was hoping Etienne would do that, but that is not the case.  If a prima facie case made its way to other 3 departments, would they hold true to Mary Immaculate v. Allstate (which they are currently following) or would they follow Etienne, which continues to incorporate an Ave T. v. Auto One analysis?