An account stated cause of action is defeated through proof that the service was never rendered

The Appellate Term, six years ago, analogized an action sounding in no-fault benefits to one for an account stated.  An account stated cause of action is satisfied through proof that a bill was mailed, retained and not promptly objected to.  While we do not know if there was a prompt objection to the bill, we do know that in opposition to a summary judgment motion in the matter of Good Samaritan Hosp. v Parim 2009 NY Slip Op 52376(U)(App. Term 2d Dept. 2009), “defendant raised a triable issue of fact since he alleged in his verified answer, which may be used in lieu of a sworn statement (CPLR 105 [u]), that he was billed for a hospital room which plaintiff never provided to him.”

This case is interesting in that it once again stresses that a verified pleading may be used in the place of an affidavit.  From a no fault perspective, this case reminds us that that the failure to promptly object to a bill for a service that was never rendered is of no consequence outside the realm of seeking reimbursement of no-fault benefits.

An allegation of a staged accident will not result in the granting of an insurance carrier’s summary judgment motion

There have been numerous cases where the Appellate Term, Second Department, has refused to grant an insurance carrier summary judgment based upon proof that a motor vehicle accident was intentional.  So, the matter of A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 2009 NY Slip Op 52383(U)(App. Term 2d Dept. 2009), is really of limited precedential value.  I would normally not post a case like this except I like how the Appellate Term quoted the decision of the District Court, that it was modifying:

“The District Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion dismissing the complaint, on the ground that defendant had shown that'[t]his has all the indicia of a staged accident.’  The instant appeal by plaintiff ensued.”

“Upon a review of the record, we find that while defendant demonstrated that it possessed such “founded belief” so as to defeat plaintiff’s motion for summary judgment, it failed to submit sufficient evidence in admissible form, in support of its cross motion, to establish, as a matter of law, that the alleged injuries did not arise from an insured incident so as to warrant dismissal of the complaint.”

An allegation of a staged accident will not result in the granting of an insurance carrier's summary judgment motion

There have been numerous cases where the Appellate Term, Second Department, has refused to grant an insurance carrier summary judgment based upon proof that a motor vehicle accident was intentional.  So, the matter of A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 2009 NY Slip Op 52383(U)(App. Term 2d Dept. 2009), is really of limited precedential value.  I would normally not post a case like this except I like how the Appellate Term quoted the decision of the District Court, that it was modifying:

“The District Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion dismissing the complaint, on the ground that defendant had shown that'[t]his has all the indicia of a staged accident.’  The instant appeal by plaintiff ensued.”

“Upon a review of the record, we find that while defendant demonstrated that it possessed such “founded belief” so as to defeat plaintiff’s motion for summary judgment, it failed to submit sufficient evidence in admissible form, in support of its cross motion, to establish, as a matter of law, that the alleged injuries did not arise from an insured incident so as to warrant dismissal of the complaint.”

A prima facie case of medical necessity?

In reading some of the entries in this blog, you might have noticed that a medical provider in a no-fault case, outside of New York, must show prima facie that the rendered services are reasonable and necessary.  It is noteworthy that in cases not involving no-fault coverage, which are governed solely by statute, e.g., Fam Ct. Act Sec. 413, the courts have in certain cases forced providers of services to make a threshold showing that the said services are reasonable and necessary.

The Appellate Term, Second Term, lead this charge in Mason v. Sondermann, 12 Misc.3d(A)(App. Term 2d. Dept. 2006), when it held the following:

“Since it is unclear from the record whether defendant Stephanie Sondermann was emancipated at the time the treatment at issue in this case was rendered, and whether the services rendered to her were reasonable and necessary a new trial is required.”

Similarly, the Appellate Division in Mary Imogne Bassett Hosp. v. Dahlberg, 229 AD2d 78 (3d Dept. 2006) held: “In our view an absolute statutory obligation pursuant to Family Court Act Section 413 attaches to a parent of a child under the age of 21 for the child’s care, maintenance and education; the obligation also includes payment of reasonable medical expenses”

In another appellate case, the Appellate Term, First Department in Pediatric Urology Assoc. P.C. v. Becher, 22 Misc.3d 130(A)(App. Term 1st Dept. 2009), held the following: “Appellant was obligated to pay the reasonable value of the medical services undisputedly rendered to his nine-year-old daughter, and this even accepting that the services were rendered at the request of his former wife.”

Finally, in recently decided case entitled Mount Vernon Hosp. v Nasibu, 2009 NY Slip Op 08591 (2d Dept. 2009), which spurred the thought behind this post, the Appellate Division observed the following: “The parent of an unemancipated child under the age of 21 has an absolute duty to pay the reasonable expenses of medical care required by the child.”

I just find it anomalous that a medical provider litigating against a child’s parent for rendered services has more to prove (Fam Ct. Act Section 413) than the same medical provider who litigates against an insurance carrier seeking no fault benefits for similarly rendered services  (Ins. Law 5106[a]).

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.

Must a carrier demonstrate that a deponent willfully failed to attend EUO's in order to substantiate this defense?

There has been a lot of activity on the Supreme Court front, in the realm of declaratory judgment actions, as to whether a insurance carrier must prove prima facie that the deponent willfully failed to attend an EUO (or IME) .  In the most recent case that came down Progressive Northeastern Ins. Co. v Arguelles Med. P.C., 2009 NY Slip Op 32353(U)(Sup. Ct. NY Co. 2009)(Friedman, J.), a declaration of non coverage was denied due to the failure of the carrier to make a threshold showing that the witness willfully failed to attend the EUOs.  See, Unitrin Advantage Ins. Co. v. Carothers, 17 Misc.3d 1121 (Sup. Ct. NY Co. 2008)(Diamond, J.).  See also, Brentwood Pain & Rehabilitation Services, P.C. v. Progressive Ins. Co. 2009 NY Slip Op 31181(u)(Sup. Ct. NY Co. 2009).

Certain cases not involving violations of the condition precedent portion of the no-fault endorsement hold that the carrier must meet the Thrasher “willful disvowal” standard in order to substantiate a no-fault non-cooperation defense.  Simmons v. State Farm, 16 AD3d 1117 (4th Dept. 2005); Park v. Long Island Ins. Co., 13 AD3d 506 (2d Dept. 2004). But see, Utica Mut. Ins. Co. v. Timms, 293 AD2d 669, 670 (2d Dept. 2002).

It follows, however, that the Thrasher standard would not involve the failure to comply with a portion of the policy that is delineated as a condition precedent to coverage.  See e.g., Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 (2d Dept. 2006); Adams v. Allstate Ins. Co., 210 A.D.2d 319 (2d Dept. 1994); Inwood Hill Med., P.C. v General Assurance Co. , 10 Misc 3d 18 (App Term. 1st Dept 2005).

Thus, as to the EUO non-appearance defense, the failure to attend two properly scheduled EUO’s should support a prima facie defense against the compensability of no-fault benefits.  A.B. Medical Services, PLLC v. American Transit Ins. Co., 2009 N.Y. Slip Op. 52067(U)(App. Term 2d Dept. 2009).  A showing of willfulness is not required, and would would only apply if the deponent attended the EUO but was obstructing the examination.  Park, supra. A review of the law also discloses that a finding of reasonableness will generally be inferred from the proximity of the date of the EUO to the scheduling date and the location of the EUO in relation to where the Claimant resides or his attorney has an office.  Great Wall Acupuncture v. New York Cen. Mut. Ins. Co., 22 Misc.3d 136(A)(App. Term 2d Dept. 2009); Eagle Surgical Supply, Inc., v. Progressive Cas. Ins. Co., 21 Misc.3d 49 (App. Term 2d Dept. 2009)

In order to oppose an EUO no-show defense, the burden is on the Plaintiff to demonstrate a lack of reasonableness.  Factors to consider would be whether the EUO was at an odd time, or whether the EUO was scheduled to be held at a location distant from the deponent or his attorney’s office.  Other factors unique to a case may also militate against a finding of reasonableness.  The proof of lack of reasonableness will either rebut the presumption of reasonableness raising an issue of fact or prima facie demonstrate the lack of reasonableness of the EUO request. See, id.

Accordingly, the decision of Justice Friedman and others who believe that a carrier must demonstrate that the deponent willfully failed to appear for two properly scheduled EUOs is probably incorrect.

See Dave Gottlieb’s post at NFP on this for his insight.

Must a carrier demonstrate that a deponent willfully failed to attend EUO’s in order to substantiate this defense?

There has been a lot of activity on the Supreme Court front, in the realm of declaratory judgment actions, as to whether a insurance carrier must prove prima facie that the deponent willfully failed to attend an EUO (or IME) .  In the most recent case that came down Progressive Northeastern Ins. Co. v Arguelles Med. P.C., 2009 NY Slip Op 32353(U)(Sup. Ct. NY Co. 2009)(Friedman, J.), a declaration of non coverage was denied due to the failure of the carrier to make a threshold showing that the witness willfully failed to attend the EUOs.  See, Unitrin Advantage Ins. Co. v. Carothers, 17 Misc.3d 1121 (Sup. Ct. NY Co. 2008)(Diamond, J.).  See also, Brentwood Pain & Rehabilitation Services, P.C. v. Progressive Ins. Co. 2009 NY Slip Op 31181(u)(Sup. Ct. NY Co. 2009).

Certain cases not involving violations of the condition precedent portion of the no-fault endorsement hold that the carrier must meet the Thrasher “willful disvowal” standard in order to substantiate a no-fault non-cooperation defense.  Simmons v. State Farm, 16 AD3d 1117 (4th Dept. 2005); Park v. Long Island Ins. Co., 13 AD3d 506 (2d Dept. 2004). But see, Utica Mut. Ins. Co. v. Timms, 293 AD2d 669, 670 (2d Dept. 2002).

It follows, however, that the Thrasher standard would not involve the failure to comply with a portion of the policy that is delineated as a condition precedent to coverage.  See e.g., Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 (2d Dept. 2006); Adams v. Allstate Ins. Co., 210 A.D.2d 319 (2d Dept. 1994); Inwood Hill Med., P.C. v General Assurance Co. , 10 Misc 3d 18 (App Term. 1st Dept 2005).

Thus, as to the EUO non-appearance defense, the failure to attend two properly scheduled EUO’s should support a prima facie defense against the compensability of no-fault benefits.  A.B. Medical Services, PLLC v. American Transit Ins. Co., 2009 N.Y. Slip Op. 52067(U)(App. Term 2d Dept. 2009).  A showing of willfulness is not required, and would would only apply if the deponent attended the EUO but was obstructing the examination.  Park, supra. A review of the law also discloses that a finding of reasonableness will generally be inferred from the proximity of the date of the EUO to the scheduling date and the location of the EUO in relation to where the Claimant resides or his attorney has an office.  Great Wall Acupuncture v. New York Cen. Mut. Ins. Co., 22 Misc.3d 136(A)(App. Term 2d Dept. 2009); Eagle Surgical Supply, Inc., v. Progressive Cas. Ins. Co., 21 Misc.3d 49 (App. Term 2d Dept. 2009)

In order to oppose an EUO no-show defense, the burden is on the Plaintiff to demonstrate a lack of reasonableness.  Factors to consider would be whether the EUO was at an odd time, or whether the EUO was scheduled to be held at a location distant from the deponent or his attorney’s office.  Other factors unique to a case may also militate against a finding of reasonableness.  The proof of lack of reasonableness will either rebut the presumption of reasonableness raising an issue of fact or prima facie demonstrate the lack of reasonableness of the EUO request. See, id.

Accordingly, the decision of Justice Friedman and others who believe that a carrier must demonstrate that the deponent willfully failed to appear for two properly scheduled EUOs is probably incorrect.

See Dave Gottlieb’s post at NFP on this for his insight.

Here I am

I am sure that those of you who read my blog on a regular or semi-regular basis have figured out who I was by now.  Let me know what you all think of the new layout that wordpress offers.  It is really neat.

Lastly, I owe a giant debt of gratitude to my friend marc of lisquared.com, who not only is hosting this site, but has provided me with a significant amount of technical support.

Many thanks

I would like to thank Roy Mura at coverage counsel for including this blog in his google search. The irony is that you never really know who is reading your blog until you come across something like that, while reading their blog.

As to Dave Gottlieb’s beard from nofaultparadise, my vote is for him to keep the shaved head, non-facial hair look. That beard is a public health hazard. Please leave your comments on his blog as to what you think…