This was a comment from Jerry Maline, of Richard Lau’s office, State Farm’s in-house counsel. This is a really astute comment, and got me thinking for a second. Now, just follow me on this to see if my logic makes sense.
According to the Appellate Term, Second Department, Notices to Admit and Interrogatories cannot be used to establish a prima facie case. This is because a party cannot admit the genuineness of another party’s documents, as well as use these devices to establish a complete prima facie case. In practice, this translates to disallowing an insurance carrier to lay a business record foundation for a provider’s bills or an injured person’s bills.
The corollary to this rule is that a medical provider cannot lay a business record foundation for an insurance carrier’s denials.
In contrast to the above, we now have learned that at the Appellate Term, First Department, interrogatories and notices to admit may be used to satisfy a prima facie case, since the genuineness of the bills is not part of a provider’s prima facie case.
Now, in light of the Second Department’s holding in Urban, viz, that a denial does not have to be “in evidence” in order to preserve the defense set forth on the denial, the only factual issue a denial presents is its timeliness. We all know that denials, generally, are mailed on the date set forth on the denial or the next business day. There are some variations out there, but that is the general industry standard. In light of Central Nassau, it would seem that a provider could be charged with having sufficient knowledge to either admit or deny: 1) whether; and/or 2) when the provider received a denial. Like anything else, this tactic will only work if the statements set forth on the Notice to Admit are properly drafted.
Since the only issue relating to an NF-10 at the Appellate Term, Second Department, involves the timeliness of the denial, it would seem to follow that a Notice to Admit can satisfy the underlying procedural issues, and allow the insurance carrier to go forward on its substantive defense. Moreover, since an insurance carrier’s entire prima facie defense does not rest on the timeliness of a denial, it cannot be said that the Notice to Admit would go to the ultimate or heart of the disputed issue. So, an insurance carrier can successfully use this device to demonstrate timely handling, in my opinion.
As for the Appellate Term, First Department, this is an open question. Notwithstanding that Court’s holding that a Notice to Admit may itself satisfy a provider’s prima facie case, that court has never opined as to whether a denial must be in evidence, in order to preserve the defenses that are set forth on it. I would imagine that the Appellate Term, First Department, would probably follow the Presbyterian v. Elrac rule and require that the denial be placed into evidence, before allowing a carrier to go forward on its substantive defenses.
In any event, the Appellate Term, First Department, at worst would only leave unresolved for trial the business record foundation issue involving the denial, besides the substantive defenses. Admittedly, laying a business record foundation is a far easier burden than showing a document was timely mailed.
Thus, a properly drafted notice to admit should resolve the timeliness issue. In the Second Department, this would resolve all issues involving the denial of claim form and allow the carrier to go forward on its substantive defense. In the First Department, this would at a bare minimum eliminate the mailing issue, and possibly leave the business record issue open, as well as the underlying defense to the no-fault claim.
5 Responses
The denial does not have to be in evidence but the bill must. A notice to admit can be used to obtain an admission that a denial was received by a certain date. A notice to admit cannot be used to obtain an admission that a bill was received by a certain date.”
What’s the difference. Ah. One set of rules belongs to providers and another to insurance companies.
Oh my goodness the bias is palpable like the slime left behind by a crawling slug.
It is the industry standard that a denial is mailed on the day it is dated or the day after. So says the industry so it must be true. Is that a new rule. Judicial Notice that because the industry says that a denial is mailed on the day dated or the day after it must be true.
Syllogistic logic. All denials are mailed on the day the denial is dated. X is a denial. X was mailed on the day it is dated. That’s what the law comes down to now. No need to prove anything specific. See Dan Medical.
My advice to my clients is this. When you get a denial stick it in the file. Do not use one person to file mail such as denials. Do not date stamp denials. Just stick them in the file. Keep no records as to the day a denial is recieved other then to check the file for denials 60 days after a bill(s) was mailed.
Notice to Admit
Q.The denial was received on or before x day.
A. Deny. Plaintiff cannot admit the matter asserted as the Plaintiff is not in possession of the information necessary to make such an admission.
See you in court 5 persons that it took to mail one denial.
Missing document charge? Adverse inference? Are you sure you want your clients saying that at trial or at an EBT? And then what happens when you have to prove you mailed a bill or keep a document in an organized business-record fashion? Sounds like a course you do not want to go down. Talk about a voir dire of a witness that could be a disaster.
No way J.T. What missing document. You can only have a missing document charge when there was a document in the first place. What adverse inference. That the denial was mailed timely? It is moot because it is inapplicable.
There is nothing that says a medical provider must keep track of the date that a denial arrives. In fact such would be an added expense because it would take time do such.
There is nothing wrong with the business practice of simply receiving mail and having a mail clerk place it in a corresponding file — unless it is a check or a phone bill etc. all of which are easily identifiable.
The only precise date that matters to the provider is the date the bill was mailed. Perfect. Maintain the bills and the postal manifest in the file. A totally separate process.
When the patient is done treating the file is reviewed for denials as per the most efficient course of business. All unpaid bills or portions thereof are then forwarded to counsel.
I do not do one bill lawsuits.
That is keeping everything in an organized business fashion although I never rely on denials to prove mailing.
The Voir Dire of the witness would be a disaster. I thought I was the one who was dramatic. During Voir Dire the witness would explain the above. I would coach the witness to say that it would be willing to be more meticulous with the insurance company documents if the insurance company paid his staff.
Is this a murder trial. Voir Dire of the witness.
Q. And you do not receipt date your denials — correct?
A. Correct.
Q. And you do not know when they came.
A. No.
Q. Don’t you need to know when the insurance company mailed the denial?
A. That is why we are here isn’t it — plus the date on the denial is usually a good indicator of whether it is late — and another thing, I leave that to Raymond Zuppa; finally would you please pay.
It is a less expensive way for the providers to do business — less record keeping = less payroll. Besides we trust the insurance companies to tell us.
Oh you ruined my fourth weekend J.T. Ima scared now.
P.S. besides you is there a NF defense attorney that could even string a cross together
Ray,
You always amuse me. For me it is non-issue because I take care of that threshold issue well before a Notice of Trial is filed. Should a court not find my documents to be timely mailed, then I take advantage of New York’s interlocutory appeal system. Should an attorney push a trial down my throat, then I move to stay the trial. It is called being on top of your files, and caring about what you do for a living. As you can tell from all of my Mercury appeals, I usually bring justice to my clients when it is needed. From what I see, that is a virtue that is lacking to some degree on my side of the aisle.
I would love to see how a missing document charge would play out in court on the issue of the timeliness of certain documents. I guarantee that it will not be me who pushes that one.
I am sure there a plenty of defense attorneys out there who can string a cross together. However, are there plenty of defense attorneys that can get under a plaintiff’s skin, but in a professional manner? That is the question…
Have a great fourth, Ray, as well as to anyone who is reading my blog this weekend. By the way, one of these days we will go head to head Ray. I look forward to when that time comes.
JT
If its before the App Term 2nd on a No Fault case I concede. Anywhere else anyone can loose or win. Any lawyer who gaurantees a victory is a fool and never really tried a case.
We’ve drifted off course though. “I don’t know when the denial came” is an efficient means to do business and an efficient manner in which to defeat this one way notice to admit injustice promulagated by the App Term 2nd — until someone slips one past to the App Div. 2nd.
JT you know I think you are a great lawyer. I would hire you anytime. I love you J.T.
As to those that get under my skin in an unprofessional manner they are soon to meet their discomfiture.
Stay tuned and remember J.T. — the 4th is about justice.