Jamaica Med. Supply, Inc. v Kemper Cas. Ins. Co., 2011 NY Slip Op 50315(U)(App. Term 2d Dept. 2011)
“The billing records submitted by plaintiff in support of its motion for summary judgment do not assert that the supplies at issue had been delivered to plaintiff’s assignor. Nor did plaintiff’s affiant state that he had delivered the supplies to plaintiff’s assignor.”
I’m starting to think that people are out of their mind for appealing some of these issues. Each subsequent appeal that a misguided plaintiff attorney perfects brings us this much closer to prima facie medical necessity. I wish I was the Respondent on this case.
5 Responses
I didnt do the appeal, but I can understand why they did it. Presumably, the Defendant argued in the lower court that the supplies were never provided, and the lower court decided to bite on the argument.
I’d bet the appeal just referred over and over to Fair Price and said “C’mon! Its the Court of Appeals. It says they cant say that the services werent provided unless they denied it timely. We should win.”
I haven’t handled much in the way of medical supply cases other than the assistence I provided winning Fair Price itself.
So let me ask, is delivery NOT to the treating provider but to the patient directly an element of the prima facie case?
I have certainly never heard of that.
If not, this would be a decision manufactured to skirt Fair Price, and amazingly blatant in that regard.
The Term can’t simply add new elements to the prima facie case whenever it wants to skirt the Court of Appeals rule of preclusion, but before I get into a huff about exposing that point, I want to confirm that medical supply cases work this way.
I remember way back the 150% mark-up was part of the prima facie case. Then supplies then became like every other case. After that, Dan Medical required a business record foundation. Now, it seems that proof of delivery is part of the business record foundation. So, I can proudly say that Fair Price has not been skirted. I might also say that I think the prescribing of DME has been a bit abusive lately, and perhaps the Term has picked up on this trend; yet, I only speculate. My closing thoughts – and I say this solely as a practitioner (not in my role as a defense attorney) -is that the amount of DME that is being ordered for many of these accidents is off the charts. When numerous court reporters who transcribe the EUOs are rolling their eyes at the amount of DME that is prescribed for some of these accidents and injures, you know something is wrong. As we all know, these court reporters have heard it all.
JT, although I am a defense attorney, I believe that this decision is wrong. Not only does it extend Dan Medical too far but it flies in the face of Fair Price. Term had no business playing wiht Fair Price. I only hope that this case does not lead to a succesful appeal and a backlash against no-fault insurers. This decion was unnecessary. The insurer’s were doing fine in the Second Department. This decision may wake up the plaintiff’s bar.
I understand your exasperation. I also have my doubts about the holding in this case.