Andrew Carothers, M.D., P.C. v Geico Indemnity Company, 2009 NY Slip Op 85909(U)(2d Dept. 2009)
The Appellate Division, on October 15, 2009, granted Plaintiff Andrew Carothers, P.C., leave to appeal the adverse decision of the Appellate Term, Second Department, which reversed the order of the Civil Court, Kings County, and held that Plaintiff failed to establish its prima facie case at a plenary trial.
If you recall, the Carothers case, the following was stated:
“The witness testified that plaintiff’s no-fault claim forms were prepared by plaintiff and transmitted electronically to AHCS to be printed and mailed to defendant. He further testified that the remaining subject documents were forwarded by plaintiff to AHCS. Even assuming that the witness was familiar with plaintiff’s business practices and proceduresand that, as an employee of plaintiff’s billing company, the witness would be competent to testify about such practices and procedures he still failed to establish, by laying the requisite foundation that the documents were plaintiff’s business records and, therefore, admissible in court pursuant to the business records exception to the rule against hearsay. Upon reconsideration of this court’s decision in Pine Hollow Med., P.C. v. Progressive Cas. Ins. Co., 13 Misc.3d 131(A), 2006 WL 2829824, 2006 N.Y. Slip Op. 51870(U) [App. Term, 2d & 11th Jud. Dists. 2006], we conclude that the law was misapplied to the facts presented in that case. Accordingly, to the extent that it is not in accord with this decision, it should no longer be followed.
In light of plaintiff’s failure to establish the admissibility of its evidence, including its claim forms, plaintiff did not establish a prima facie case Even under the standard set forth in Pine Hollow Med., P.C., 13 Misc.3d 131(A), 2006 N.Y. Slip Op. 51870(U), the witness’ testimony was not sufficient to lay the proper foundation for the records plaintiff sought to introduce into evidence because AHCS did not incorporate plaintiff’s records into its own records, but merely received, printed and mailed them. Accordingly, defendant was entitled to judgment dismissing the complaint.” (internal citations omitted)
I believe that this case is going to spell the end of Dan Medical, which requires that a business record foundation (CPLR § 4518[a]) be laid for the entry of the bills into evidence in order to satisfy a provider’s prima facie. For those who believe that Art of Healing Medicine, P.C. v. Travelers Home and Marine Ins. Co., 55 AD3d 644 (2d Dept. 2008)(upholding the business record foundation model to satisfy a prima facie case) is dispositive, I think one should evaluate New York Presb. Hosp. v. New York Cent. Mut. Fire Ins. Co., 31 AD3d 403 (2d Dept. 2006)(finding that a signed assignment of benefits is part of a prima facie case), and how the Appellate Division,immediately moved away from this model, eventually leading in the Court of Appeals holding that a signed assignment of benefits is nor part of a prima facie case. Hospital for Joint Diseases v. Travelers Prop. Cas. Co., NY3d 312 (2008)
