Dynamic Med. Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 20285 (Dis. Nassau 2010)
I am somewhat flabbergasted at this decision. I am pretty down the middle (I think) and I really try to be as fair as I can on this blog. With that introduction, I will say the following. I would probably volunteer to do the appeal on this one, just because it is off on the law, the facts and is against the trend of every modern case that has come out of both branches of the Appellate Term, Second Department, as well as some “hidden” Appellate Division precedent, which I will not disclose. You can read the facts of this case at your leisure.
20 Responses
I would love to see the hidden Appellate Division precedent. It must really be hidden.
You should look to Mallela and the Court of Appeals for this one. Re: looking beyond the face of licensing documents — You cannot abuse the regulations. You must demonstrate behavior tantamount [sp?] to fraud.
You should not be allowed to receive a bill and then demand an EUO.
It is about time someone said give me a break.
J.T. they are an insurance company. Not the U.S. Attorney’s Office or the Dept of Homeland Security. If you wanted to work for one of the above you should have applied. You still can.
The law says if you think it is oppressive, object. You cannot just not show-up. As to your comment regarding the US Attorney’s office, what happens when you do not show up to your arraignment after a true bill has been voted out, despite your objections to the said indictment? I think it is called a bench warrant.
The rule is prompt payment. Stupid demands are a nullity that need not be responded to. They are a bogus waste of time. A response will begat another demand — round and round it goes. Arguments and threats. I have done it and it is well publicized and up on appeal in a case where my pleading is quite good.
How does a medical provider function if it has to respond to hundreds of bogus demands made to delay and wear down.
Mind you after reading the about the latest bust in the medicare scam and seeing some familiar names I am even more disgusted then ever. Insurance company omnipotence is not the answer. I have several friends and a close relative as well as a client that were in very real accidents with real injuries who treated at doctors that have been in their families for years — bogus denials.
Thanks for making my point J.T. Again if you want to be responsible for having Bench Warrants issued you need to apply to the U.S. Attorney’s Office. You are a bright kid. They’ll take you — except you may be too bright for them.
I like the kid comment. I find that when I leave the office, get some sun, and bike ride 30+ miles, I look 5-10 years younger.
I would say that many medical providers do “respond” to these document requests, in that they voice specific objections from their counsel in writing as to the validity of the document demands, prior to the scheduled EUO. In my practice, I can tell you that when I receive the “why are you demanding an EUO and assorted documents” letter from a provider or their counsel, I send a correspondence back, stating why I am requesting these documents and their EUO. If the medical provider still does not want to be deposed, then so be it. But, that is how the above situation should be handled. It is a no brainer.
It is improper to do nothing, and it is even more improper for a court to sanction the behavior of a provider that does nothing.
First in my experience — and it is well documented — a response saying what is your basis for asking for this documentation that is worthy of a federal money laundering probe is always the same. A tough guy wannabe who couldn’t try his way out of a paper bag tells you that according to the Dept of Insurance a basis for the demand need not be enunciated in the letter. On and on it goes.
Let’s not mince words Jason. The Ct of Appeals says you cannot ask for this stuff without a demonstration of fraud. The letters are meant to cause a non-response and a denial. As such they are unlawful and need not be responded to. I know of particular lawyer at a particular firm who told a provider that had a habit of showing up to these things: “We don’t expect people to respond.”
This conversation will be reduced to Affidavit form in an upcoming legal action so stay tuned.
You would have a medical provider have a full time legal staff just to argue with tough guy no fault defense attorneys. And the nasty letters they send — from the White Shoe No Fault Defense Firms. As I always say my father with two years of school became a millionaire before he was 40 so a law degree does not impress me.
The letters are improper and unlawful. As such a response is unwarranted.
Let’s not mince words Jason. I am going to be trying some real cases against some of these folks and I tell you this. I am going to pick a jury and then proceed to tear their still beating hearts out and feed it to them bit by bit.
People can talk all they want but I have a habit of at least attempting what I say. And in this sphere — trials — I always deliver what I say I will deliver. Hah. What do you have: A bunch of bum rushing miscreants that never faced anything but an equally miscreantish no fault plaintiff’s bar.
Dave – I accidentally marked your comment as spam. I get about 10-100 spams a day. Anyway, you asked about whether or not the insurance carriers’ asking for unicorns would be deemed a valid request. I would only say that you should tell the carrier that unicorns do not exist. But that is it – YOU MUST TELL THEM.
It’s ok. Sometimes I accidentally make spam comments.
Funny Dave. Anyway, I am going to start asking for unicorns now.
I wish you would. I’d like to know just how far the Appellate Term will let insurers go with this.
Here I go and say a bunch of incendiary stupid things to boost your low summer ratings and you take this and start talking about unicorns. D.G. where is my incendiary comment on the Acupuncture Fee Schedule. Zuppa may bring flys but he also brings ratings. I am the Kimbo Slice of law.
Find me regarding plaintiff’s brief at NFP.
You are alive. You were MIA for about 2 weeks.
I would just like to say “you’re welcome” for this decision. Although, State Farm is appealing me, so I may have to withdraw that at some point.
I knew you were behind that decision. I really respect Judge Hirsch, and enjoy appearing before him. I disagree with some of the things he writes, but he was off on this one. If the Appellate Division is going to punish carriers by not allowing discovery during arbitration because the carrier should have used the EUO devices, yet the courts are saying that the EUO device may not be used because it is being used as a pre-litigation tool, then where does this leave us? I think that is why I have issues with this case. You can’t have it both ways. Oh, and that is the crux of my appeal if I were writing it. Please send me a check for $500.00 – that is my minimum fee.
Oh J.T. you are so wrong on this. Read the regs. An EUO is not an automatic right. It must be reasonably requested. It is an exception to prompt payment. You have to have a good valid reason. See the Mallela case. The vaunted Mallela case. The second coming Mallela case.
Also the anti-trust style document demands were the pre action discovery that the judge was referring to. Not the EUO. Obviously the demands are gauged to produce a non response so that the insurance company can have a justification for non-payment. See Id.
Stop with this “brave new world of lawyering” which is misrepresenting your opponent’s argument and then arguing against the misrepresentation with much aplomb and bravado.
J.T. if you try that when we have our Supreme Court or Federal Court jury trial I am going to rip your heart out and feed it to you — the jury may not get it at first but when you show them … oh they’ll hate you about as much as southerners hated carpet baggers — Mr. Insurance Company man. Mr. taxpayer bail out man.
Here’s a snippet of Brave New World Lawyering that actually occurred between myself and an unidentified brave new world lawyer before an Appellate Court.
[Spoken like Carrie’s Mother] “Yerrr honorrr I argued Hospital fer Joint diseases … I know what that case is about betterrr then that there Mr. Zuppa.”
Zuppa: Wait a minute … you lost that case.
[Carrie’s Mom with the law degree] Yer honorrrr I’m gonna ask that Mr Zuppa stop insultin’ me and ma clients.
Court: Ad hominen and invective. $10 costs. You lose because your client is a fraud running a ponzi scheme.
You seem to crave this knock down, drag out jury trial in some Supreme Court or Federal Court with me. I am not sure how I became one of the targets of your affliction, but I will be more than happy to oblige you if that is what you want. As for your desire to tear my heart out, feed it to me and do other sordid things to me, I am not sure how those actions will endear yourself to a jury.
Lastly, in the Appellate Division, you would get socked with $200 in costs for your behavior. Be glad costs are limited by statute to $30 at the Appellate Term. And I should also let you know that the Appellate Term cannot hate you that much if they only hit you with $10 costs, as opposed to the full $30.
And Judge Hirsch really wants your respect J.T. He craves it. He wants you to write more about him. So does Judge Engel. They all curry favor with you in the hopes that it will elevate them to the Appellate Term 2nd — the Court that J.T. built.
Judge Hirsch is a very well thought out and articulate jurist. I truly enjoy appearing before him, and suspect he will be in Supreme or County very quickly. I believe, however, he was wrong in that case. As I said before, if you have an issue with the EUO, then formally object to it or show-up to it. But it is wrong to blatantly fail to appear for an EUO and to then argue that the EUO was a nullity. On the facts in that case, summary judgment should have been awarded to the insurance carrier.
Those are terms of art J.T. Not scenes from a horror movie and god knows what else. Again you distort my arguments and argue against them. What I was saying is that if you utilize the “Brave New World” of lawyer tactics you’re dead. Not literally. You’ll be okay. You’re case won’t.
“I can’t believe I lost … I did so well in the Thousand Needles of Death Acupuncture P.C. case on Appeal.”
However I am happy that you informed me about costs. By your logic I am only 33% hated which means compared to everyone else the Term barely hates me.
You’re the best J.T. and you know I love you. I am just trying to give you summer ratings.
pls ray if you can call 813-325-0081