Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 2011 NY Slip Op 21039 (App. Term 2d Dept. 2011)
When Carothers was decided, people on here commented that a third-party biller would now be able to establish a prima facie case provided certain prerequisites were met. This was based upon the following language in Carothers:
“Further, although a proper foundation can be established by a recipient of records who does not have personal knowledge of the maker’s business practices and procedures, there must still be a showing that the recipient either incorporated the records into its own records or relied upon the records in its day-to-day operations”. Andrew Carothers, M.D., P.C. v. Geico Indem. Co., 79 A.D.3d 864, 865 (2d Dept. 2010).
Admittedly, I tended to agree with the comments. But like many, I failed to look at the cases Carothers cited, particularly Plymouth Rock Fuel Corp. And, I of all people should have known better because when I wrote the losing appellant’s brief in Pine Hollow v. Progressive many years ago, my main argument was consistent with Plymouth Rock: the owner or other custodian employed at the medical facility can incorporate the records of the biller, not the other way around. I lost at that time, and perhaps that is why I acquiesced to the comments that were posted here.
In any event, the Etienne case proves that I was actually correct 7 years ago. Perhaps now, I can sleep better at night. The pertinent quote of Etienne is as follows:
“In each of those cases, an entity sought to admit a third party’s records into evidence, pursuant to the business records exception to the hearsay rule, through the testimony of the entity’s own employee. In the case at bar, however, it was plaintiff that sought to admit its own claim forms, pursuant to the business records exception to the hearsay rule, through the testimony of an employee of its third-party biller. Further, it appears that, in DiSalvo and Plymouth Rock Fuel Corp., the third party had a business duty to report accurate information to the entity seeking to use those records. In this case, although plaintiff’s biller asserted that plaintiff had a contractual duty to provide accurate information to its billing company, plaintiff did not submit any evidence of such a duty”.
Aside from making it almost impossible for medical practices that are not in business anymore to satisfy a prima facie case, there was something really interesting in the opinion that I have to put in here:
“Finally, the fact that the claim forms are prescribed by regulation does not render them inherently [*4]trustworthy or reliable. As recognized by the Court of Appeals, incidents of no-fault fraud are prevalent in New York, including instances where corrupt medical clinics “generate stacks of medical bills for each passenger, detailing treatments and tests that were unnecessary or never performed” (see Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854 [2003]).”
This should be contrasted to what the Appellate Term, First Department said on the exact issue, while also construing Matter of Medical Socy. of State of NY v Serio:
“Our conclusion that a plaintiff provider can use admissions obtained through a notice to admit to establish its entitlement to recover overdue assigned first-party no-fault benefits is consonant with the purposes underlying the No-Fault Law, which “were to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003])”
Really interesting stuff.
11 Responses
EXCELLENT ANALYSIS. HOWEVER, DO YOU THINK IT IS FAIR TO SAY THAT, AS A MATTER OF LAW, A MEDICAL PROVIDER CANNOT ESTBLISH A PRIMA FACIE CASE THROUGH A THIRD PARTY BILLER OR IS IT POSSIBLE FOR A THIRD PARTY BILLER TO FIGURE A WAY AROUND THIS DECISION.
Analysis of what. I think an analysis of this decision would require an analysis of what is not on the record.
To that end the Appellate Term hinted.
The Appellate Term 2nd has appointed itself Judicial SIU to the insurance companies. It is not the job of the Appellate Term to judge the crediblity of claim forms. It is for the insurance companies using their SIU to investigate fraud.
To put it in starker terms the App Term 2nd has just admitted that its mission is to protect no fault insurers.
Please I am sick of the citation to Serio wherein the volume of fraud complaints — hearsay to the umpteenth power — to the Department of Insurance rose. Pay me to sit in cubicle all day and write complaints about insurance companies and I’ll do more complaining then the entire industry combined.
Every Peer Review and IME is a case of Insurance Company fraud.
Welcome to New York State — and justice for all the corporations.
And by the way if I had the time — I tilt at enough windmills — I could easily demonstrate through case law that business reliance on the documents of a third party, along with the other business record foundational requirements, satisfies the business document exception to the hearsay rule.
I can get an insurance companies denials into evidence through a provider.
I feel like I am discussing law with a bunch of people that just took their LSATs. And I am not just referring to the posts here.
Wasn’t it now Justice Siegel in Medical Expertise/Trumbell who said a medical provider could get a denial into evidence? I think you were beaten Raymond. I think it is interesting how Serio can be construed for two divergence principles involving the same issue.
Zuppa’s America.
What do you mean I was beaten? I was acknowledging the law. Justice Siegal also call no fault “the fairyland where the CPLR and the rules of evidence do not apply.”
Definitely not my Americans although I still love the forefathers and mothers and what’s left of the land.
What next an analysis of the the Dredd Scott decision. We can talk about the logic right.
No we had a bunch of biased judges.
America’s Justice system. Dredd Scott was never reversed. We had to fight the civil war and then Amend the Constitution to get rid of that marvel of the judiciary.
Does this mean that claims reps will now have to have PERSONAL knowledge of the IME and peer review Dr.s business practices ?
The gladius of justice cuts both ways.
Why is that? I do not understand where you are coming from with that.
And Zuppa’s America was a good dig. You are obviously aware of my feelings re: Rupert Murdoch via Fox deeming that all of America belongs to Sean Hannity visa-vi his Fox show “Hannity’s America.”
Of course we are all aware that Hannity is the new brand of American Hero. No medals for courage like Kerry or General Wesley Clark (Valedictorian West Point).
“In February, only one month into his command, he was shot four times by a Viet Cong soldier with an AK-47. The wounded Clark shouted orders to his men, who counterattacked and defeated the Viet Cong force. Clark had injuries to his right shoulder, right hand, right hip, and right leg, and was sent to Valley Forge Army Hospital in Phoenixville, Pennsylvania to recuperate. He was awarded the Silver Star for his actions during the encounter.”
Hannity, Limbaugh and Oh Reilly are culture warriors that say nasty things about people on television. Brave men in this Brave New America of sleaze and smut. Punch them in the face for outting your wife as a CIA agent and they sue you.
Oh I thought you were commenting on the FOX Show: Hannity’s America when you said Zuppa’s America. Then I just ranted from there.
I need to bring back the pit so I can have a forum for my “iconoclastic indecipherable” ranting.
Sorry J.T. You may continue regular programing.
My regular programming includes working on a Yellowstone. I am going to grab some “pic-a-nic baskets at Jellystone park”. Send my regards to Ranger Smith.
Where’s travelers when you need them to appeal to end of time in the 1st Dept?