The Fourth Department for the first time in a decade has discussed the issue of what constitues a prima facie case

In the matter of Sunshine Imaging Association/wny Mri v Government Employees Ins. Co., 2009 NY Slip Op 06984 (4th Dept. 2009), the Appellate Division, Fourth Department finally chimed in as to what constitutes a prima facie case in a no-fault action.  The last time the Fourth Department discussed this issue, they held that a plaintiff, as part of its prima facie case, needed to prove that a service was medically necessary.  It looks like the Fourth Department has now joined the other Appellate Divisions, as to the elements of a prima facie case.

The Court held as follows: “Although plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that the prescribed statutory billing forms were received by defendant and that defendant’s payment of no-fault benefits to plaintiff was overdue (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727, 728), defendant raised a triable issue of fact by submitting its denial of claim forms setting forth that the services for which plaintiff sought to recover no-fault benefits were not medically necessary (see Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313, 314; A.B. Med. Servs., PLLC, 39 AD3d at 780-781).”

Finally, the Appellate Division, Fourth Department, in discussing whether severance of a joined claim was acceptable, stated the following: “Although this action was commenced “by a single assignee against a single insurer and all [causes of action] allege the erroneous nonpayment of no-fault benefits . . ., they arise from [14] different automobile accidents on various dates in which the [14] unrelated assignors suffered diverse injuries and required different medical treatment” (Poole v Allstate Ins. Co., 20 AD3d 518, 519).”

The Appellate Division, Fourth Department, at least as to severance, has followed the lead of the First and Second Departments, when it found that severance was appropriate in the above circumstance.  Notably, the Appellate Division, Fourth Department, has declined, in the severance arena, to follow Third Department precedent, which unconditionally permits the joinder of all claims against a common insurance carrier.

To those who practice in Buffalo on the Plaintiff’s side, you must be breathing a sigh of relief after reading this case.  Nobody can now ethically hold you to the Hobby v. CNA standard requiring a plaintiff to make a prima facie showing, in the first instance, that a service is medically necessary.

It is prima facie day

I suppose to the extent the Appellate Term, Second Department has been on the 4518 band wagon, it is nice to see the rule that certain evidentiary objections need to preserved in order to raise them on appeal. According to my count, there were 11 prima facie challenges in the June 10, 2009, posted cases. The preserved challenges were successful in all but one case. I suppose the question is: what must an affidavit contain to satisfy a medical provider’s prima facie case, and does it matter which branch of the Appellate Term, Second Department is adjudicating the issue?

Pine Hollow – dead

It is nice to see the death of a case, which was improperly decided in the first instance. In many ways, it is a vindication to those of us who believed Pine Hollow created a scenario that left the business record rule, naked and without potency. Caruthers pretty much fixes up the mess Pine Hollow created.

But, the better question is whether one really needs to satisfy CPLR 4518(a) to make a prima facie case?

The Court offers some guidance as to the business records exception

V.S. Med. Servs., P.C. v Travelers Ins. Co.
2009 NY Slip Op 50048(U) (App. Term 2d Dept. 2009)

Plaintiff offered the testimony of its former employee and sought the admission of, inter alia, its purported claim forms into evidence. Defendant objected on the ground that said documents were hearsay and that plaintiff failed to lay a foundation for their admission pursuant to CPLR 4518.

While plaintiff produced a witness to testify regarding the claim forms plaintiff sought to have admitted into evidence, because said witness did not testify at all as to the generation of such claim forms, they were not admissible as business records

And then the Appellate Division, Second Department spoke

Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co.
2008 NY Slip Op 07846 (2d Dept. 2008)

The Appellate Division Second Department has now, in pertinent part, decided to follow Dan Medical as it relates to the necessity for the records to be entered into evidence for the truth of the matter asserted.

To quote the court: “The plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law. The plaintiffs’ medical service providers failed to demonstrate the admissibility of their billing records under the business records exception to the hearsay rule (see CPLR 4518[a]”

So there goes the literal interpretation of Mary Immaculate (discussed in the prior post) that the Plaintiffs’ bar has relied upon to meet a prima facie case. Indeed, the Appellate Term, First Department has been adamant that the billing forms do not need to be placed into evidence to make a prima facie case.

Yet, let us not forget that the Appellate Division, First Department, adopted the Mary Immaculate rule in Countrywide Ins. Co. v. 563 Grand Medical, P.C., 50 AD3d 313 (1st Dept. 2008), when they held as to prima facie in a trial denovo setting that:

“Defendant medical provider established prima facie its entitlement to judgment as a matter of law by demonstrating that the necessary billing documents were mailed to and received by plaintiff insurer and that payment of the no-fault benefits was overdue”

I therefore do not think this case will represent much of a shift in the law, as it stands today. What this case opens up the door to, at some point, is a Court of Appeals ruling should the Appellate Division, First Department continue to follow Mary Immaculate. This would render a split in the Appellate Divisions, which would allow the prima facie issue to make it all the way to the top of the appellate food chain.

Prima facie: schizophrenia from the Appellate Term

Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co.
2008 NY SlipOp 52046(U)(App. Term 2d Dept. 9th and 10th Jud. Dis. 2008)

I have been waiting for the day when a Henig Hospital case with the famous Hospital Receivable’s third-party billing affidavit (which we all know is insufficient to lay a proper foundation for entry into evidence of the billing forms) to be evaluated by the Appellate Term, Second Department.

Let me explain. The famous Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 (2d Dept. 2004) case is a Appellate Division, Second Department case, which involved a Henig third-party biller affidavit. The Apppellate Division, as we all know, said that a prima facie case consists of submission of a claim form, and proof that the bill is overdue. Therefore, Mary Immaculate was granted summary judgment.

Here, the Appellate Term today ducked the prima facie issue. The Court said that the issue is not preserved since the issue was not raised in the initial answering papers of New York Central Mutual. Therefore, the issue was not before the Court.

However, the case which this case “cf” cited said that the issue of admissiblity of business records may be raised for the first time on appeal. See, Bath Med. Supply, Inc. v Deerbrook Ins. Co. , 14 Misc 3d 135(A)(App. Term 2d and 11th Jud. Dis. 2007). Yet, this case said that an appellate court may not do this. My suspicion is that the Appellate Term did not want to deal with the fact that these third-party affidavits are sufficient before the Appellate Division, yet are not acceptable before the Appellate Term.

I feel that at some point, we are going to have a prima facie showdown in the Second Department. I believe this will happen soon.

Dan Medical is safe for now (well sort of)

Bajaj v General Assurance
2008 NYSlipOp 84460(U)(2d Dept. 2008)

“Motion by the plaintiff for leave to appeal to this court from an order of the Appellate Term, Second and Eleventh Judicial Districts, dated October 22, 2007, which reversed a judgment of the Civil Court of the City of New York, Queens County, entered February 9, 2006.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is denied.”

Comment: Baja was the case that held that a Plaintiff cannot make its prima facie case based upon a notice to admit. This was the companion to Empire State Psychological Servs., P.C. v Travelers Ins. Co. (App. Term 2d Dept. 2007), which held that interrogatories admitting receipt and the bills being overdue was insufficient to make a prima facie case. The above cases were ruled on as they were because the Appellate Term, Second Department, has consistently opined that the billing claim forms need to be entered into evidence.

This is in contrast to the Appellate Term, First Department, which has routinely held that a prima facie case is set forth through a literal interpretation of Mary Immaculate Hospital as observed in Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc.3d 8 (App. Term 1st Dept. 2007), to wit:

“[d]efendant insurer admitted that it received the no-fault claims at issue and made partial payment on the claims. Inasmuch as defendant’s verified answers to the interrogatories constituted admissions of a party, which are admissible as evidence, defendant may not now be heard to argue that plaintiff failed to submit proof that the claims had been mailed and received, and that they were overdue (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). To the extent that Empire State Psychological Servs., P.C. v Travelers Ins. Co. (13 Misc 3d 131[A], 2006 NY Slip Op 51869[U] [2006]) supports a contrary conclusion, we decline to follow it.”

Had Baja made its way to the Appellate Division, Second Department, then it is likely that the world of Dan Medical would have gone the way of vicarious liability in leasehold cases following the Graves Amendment.