Elmont Open Mri & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 52222(U)(App. Term 2d Dept. 2010)
I guess the luck of certain Nassau plaintiff firms (9th and 10th judicial districts) who received favorable decisions on medical necessity motions, while their counterparts in the other Second Department lower courts (2nd, 11th & 13th judicial districts) did not fare as well, were handed a glaring set back in the latest round of decisions.
To put it bluntly, the Appellate Term has held that these firms’ papers and arguments in attempting to defeat a marginally supported lack of medical necessity motion will always lose. While the Nassau judges, in several well though-out published decisions found otherwise, the Appellate Term for the 9th and 10th Judicial Districts has now conformed their holdings on this issue to that of their New York City counterparts.
While I have reservations about the Appellate Term’s holding that the failure to annex documents that a peer review doctor relied upon is proper, what is interesting is that this court adopted the Urban Radiology holding verbatim. As it related to the “non-hearsay rule” of plaintiff’s documents, this decision was correct in light of the Fourth Departments holding in Matter of State of New York v Wilkes, 2010 NY Slip Op 07006 (4th Dept 2010). As those who read this blog regularly will know, I discussed the Wilkes case and predicted that it would solidify the non-hearsay rule enunciated in the Urban court and now followed by the Elmont court. I have always said to watch the Fourth Department when they dump about 100 cases online once each month.
Here is my favorite line from this Court: “defendant was not required to consider plaintiff’s bills in a vacuum and to ignore medical records which defendant had received either from plaintiff’s assignor or from another provider who had submitted such records on behalf of the assignor”
