Active Imaging, P.C. v Progressive Northeastern Ins. Co, 2010 NY Slip Op 51842(U)(App. Term 2d Dept. 2010)
The Appellate Term, Second Department rejected a plaintiff’s challenge to a lack of medical necessity motion, based upon a peer report – without the medicals that were relied upon – because “these reports and records are not part of defendant’s prima facie showing.”
As a fail safe, the court said that: “pursuant to CPLR 3212 (f), a court has discretion to deny a motion for summary judgment or order a continuance to permit affidavits to be obtained or disclosure to be had, if facts essential to justify opposition may exist but cannot then be stated.”
I hate to say this, and I feel some defense guys probably will not be happy with what I am going to say, but I will say it anyway, because this is is my blog and I try to do the right thing. I think this decision is wrong. An opinion based upon medical records (whether hearsay or not hearsay) should contain the relied upon medical records. The Second Department said this in a case you can find on this blog.
Now, I do not feel the same way about IME cut off cases, because unlike Judge Hirsch, I believe that a finding of lack of disability or something that implies (but does not say) “medical maximum improvement” prima facie establishes a lack of medical necessity for post IME services, supplies, etc. Thus, the lack of inclusion of medical records on an IME cut-off case, generally, should not impact an insurance carrier’s prima facie entitlement to summary judgment.
I believe the Appellate Division may grant leave on this case, for the simple reason that a decision like this could be disastrous in medical malpractice and bodily injury litigation, under the right fact scenario.
Finally, the “3212(f)” remedy is a cop out in my mind, and probably an admission this decision does not rest on solid footing. My advice to the plaintiff’s bar is to be careful before you file Notices of Trial in the Second Department.
So yes, this blog is fair and balanced, at least in my mind.
9 Responses
No JT, you were correct. The Court is wrong. What a silly decision.
Don’t be too certain that the AD will grant leave on this. They just denied leave in Urban Radiology v. Tri-State, which follows a similar logic, although not cited within.
If you want to argue that you are fair and balanced do not use the words “fair and balanced.” Because of Fox the words mean the opposite of what they say.
Say “I apply logic to the facts and wherever the logic takes me I go.”
Your pearls of wisdom are always appreciated on here. But I am everything Fox is not…
I know J.T. I just wanted to make sure that people did not take “Fair” and “Balanced” in a satarical fashion. Now I am hurt. You dressed me down for all to see. I can take it from the App Term and the App Div and every court beneath but “E Tu JT. Then fall Zuppa.”
“Caesar. The ides of March are come. Soothsayer. Ay, Caesar; but not gone.”
The App Term wants to now pretend Wagman and its progeny do not exist?
This decision will simply make discovery more costly for all parties.
And the only purpose it serves is to allow a payed medical hack to fail to annex the documents he/she supposedly reviewed to his affidavit/firmation. In short, no legitimate benefit here, except that it is easier to hide the truth.
Wait, is that a benefit for this Court?
And a good enough benefit to ignore the rule of precedent?
I play by the rules Sun. Although lately, I am starting to wonder what the benefit of playing by the rules is anymore.
Assuming you can make an argument with no attendant burden, the argument will be made whether valid or not. When burdens get relaxed into oblivion, it will invite more dishonesty.
However, in the long haul, it’s all about the ethos. Little tricks might win the day, but they will lose the war– at least assuming your adversay is good at connecting the dots.