Lenox Hill Hosp. v Allstate Ins. Co., 2011 NY Slip Op 50800(U)(Dis. Ct. Nassau Co. 2011)
Point #1: “A hospital makes a prima facie showing of entitlement to judgment as a matter of law by submitting proof the necessary billing forms and documents have been mailed to and received by the no-fault insurer and payment is overdue. New York Hospital Medical Center of Queens v. Country Wide Ins. Co., 82 AD3d 723 (2nd Dept. 2011); Westchester Medical Center v. Countrywide Ins. Co., 45 AD3d 676 (2nd Dept. 2007); and Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 (2nd Dept. 2004).”
Point #2: “A medical provider must establish as part of its prima facie case the billing records submitted for payment are business records. Art of Healing Medicine, P.C. v. Travelers Home and Marine Ins. Co., 55 AD2d 644 (2nd Dept. 2008); and Dan Medical, P.C. v. New York Central Mut. Fire Ins. Co., 14 Misc 3d 44 (App. Term 2nd & 11th Jud. Dists. 2006).”
Point #3: “All medical providers, other than hospitals, must establish as part of their prima facie proof in an action for first party no-fault benefits the claim forms and bill are business records. See, Viviane Etienne Medical Care, P.C. v. County-Wide Ins. Co., supra – physician’s services; Lenox Hill Radiology v. New York Central Mut. Fire Ins. Co., 20 Misc 3d 851 (Dist. Ct. Nassau Co. 2008) – radiological services; Craigg Total Health Family Health Chiropractic Care, P.C. v. QBE Insurance Corp., 20 Misc 3d 1118(A) (Dist. Ct. Nassau Co. 2008) – chiropractic services; North Acupuncture, P.C. v. State Farm Ins. Co., 14 Misc 3d 130(A) ( App. Term 2nd & 11th Jud. Dists. 2005) – acupuncture treatment; Bayside Rehab. & Physical Therapy, P.C. v. Geico Ins. Co., [*4]24 Misc 3d 542 (Civil Ct. Richmond Co. 2009) – physical therapy treatments; Complete Orthopedic Supplies, Inc. v. State Farm Ins. Co., 16 Misc 3d 996 (Civil Ct. Queens Co. 2007) – durable medical supplies.”
Point 4: “The testimony or affidavit of a third party biller is insufficient to lay the foundation necessary to establish the claim form and billing documents are business records. Andrew Carothers, M.D., P.C. v Geico Indemnity Co., 79 AD3d 864 (2nd Dept. 2010: and Viviane Etienne Medical Care, P.C. v. Country-Wide Ins. Co., 31 Misc,3d 21 (App.Term, 2nd, 11th & 13th Jud. Dists. 2011).”
Holding: “The cases regarding hospital and cases regarding all other medical providers have developed on parallel tracks. The cases involving motions for summary judgment relating to hospital admissions do not address or discuss whether the hospital must establish the necessary billing documents ( NF-5, bill, assignment) are business records of the hospital.This Court can find no basis in the no-fault law or regulations why there should be a difference in the proof required of a hospital and the proof required of all other medical providers to establish a prima facie entitlement to judgment as a matter of law. A hospital should as part of its prima facie proof be required to establish the no fault claim, bill and other documentation submitted in connection with a clam to obtain payment of first party no-fault benefits is a business records.”
Go Judge Hirsh. Finally, someone calls this prima facie idiocy -as it currently exists in the law- for what it is.
14 Responses
So a business whose business it is to generate pieces of paper cannot claim those pieces of paper are its business records.
sounds to me that this might hurt the defendants more than it helps .
@NYCOOLBREEZ: Isn’t the decision saying that a business whose business it is to send out bills based on OTHER businesses’ records, can’t claim those records are its own?
After all, the only records generated by a third party biller, are the bills. The claim forms are based on information provided by the medical providers.
It’s all legal fiction, of course. It’s sort of like debating what “happened” after the screen went black at the end of the last episode of “The Sopranos.”
Larry Rogak when you say the only records generated by a third party biller, are the bills. The claim forms are based on information provided by the medical providers,
is that like how insurance company denials are based upon peer review and ime reports generated by medical providers?
How many times must I try and teach you all evidence. If the business relies on the records of the other business to do its business then we have the business document exception.
Hence I have proven timely mailing through the denials of insurance companies.
Every day I amazed by how stupid the law has gotten. And make no bones its the fault of all the participants. The law is now as idiotic as the rest of the nation.
@NYcoolbreeze: The information entered on claim forms is required to be true, and the third party biller has no first hand knowledge of whether the claim information is true. The truth of the facts entered into an insurance claim form is a legal requirement, because false statements on an insurance claim form constitute a crime. An opinion of an expert as to a patient’s condition is not a crime, even if poorly rendered (I’m sure my friend Zuppa would debate that).
Peer reviews and IME reports are opinions, not facts (although the opinions are based on facts). So when a denial is based on a peer or IME report, the insurer is relying upon the opinion of an expert in coming to a decision.
Perhaps in an ideal world, there should be little disagreement among competent doctors as to what treatment is necessary for any given patient, but even outside of no-fault, I hear stories all the time about how the same patient got different opinions from different doctors.
Not to be picayune but the mere receipt or filing of papers from another entity does not make them business records of the receiving party.
Using denials to prove submission by a provider is not the business document exception; the party admission exception is what gets denials in as evidence of receipt of the claim by the defendant.
So again how is it that peer reviews/IME reports are business records of the defendant?
No Mr. Fetid Breeze that is not what I meant you no fault genius.
You have to set a foundation. We rely on this records to do this and that etc. (the affidavit talks about how the denial tells the provider if its been paid; whether to pursue the claim in arbitration etc. the denial is everything to the business) in the ordinary course of business. Lay it out.
The denial acts as the provider’s proof of mailing. It comes in as a business record because the provider relies on it in the ordinary course of business as described above.
This how dumb the world is when it comes to evidence and especially hearsay. A written denial consists of two layers of hearsay in New York and one in the Federal rules.
According to the Federal rules an admission is not hearsay while in NY there is an exception. This is a technicality.
In any event the denial is two layers. The statement contained therein and the document. To give you some perspective if I testify in Court that I heard the president of Stately Farms say: “We are going to use every means possible to deny” — that’s one layer. Admission overcomes it. (We could get into speaking authority but I don’t think anyone would understand it — and its not an issue in this hypo)
You put the statement on a document and the document adds a layer — it is an out of court recording of the statment made by the claims rep.
You need the business doc exception to get the admission in.
Don’t feel bad Sewer Breeze I am sure the Courts do not even understand hearsay.
Okay all of you dummies can go back to No Faul.
First, if putting me down makes you feel better then go ahead.
Second I hate to disagree but the mere reliance upon another’s documents for a business purpose does NOT make it a business record.
I may be fetid but i know the receiving party must show the record received to be reliable by demonstrating knowledge of the transmitting party’s business practice.
SO educate us oh wise one how exactly does the medical biller demonstrate knowledge of the insurance company’s business practice to show the statement on the denial is reliable? Or that the Insurance Company has a business duty to transmit to the provider reliable and truthful information?
Unless at trial you concede the insurance company provides truthful and accurate information?
It is NOT as a business record of the medical provider that a denial comes into evidence on the provider’s direct case.
Third, no one needs any exception to get a party admission into evidence. By definition a party admission cannot have two layers of hearsay. ITS A STATEMENT BY A PARTY
So again how is a peer review or an IME report a business record of the insurance company?
Larry Rogak: Opinions contained within business records are not admissible unless the declarent can offer the opinion on the stand.
And just to put this all in perspective: “The purpose of the no-fault statute is to insure prompt payment of medical claims regardless of fault. (Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997], rearg denied 90 NY2d 937 [1997].)”
That might be the purpose, but it isn’t the practice. Now debate whose fault that is.
Okay let’s go.
NYSewerBreeze it is impossible for me to enjoy putting you down. I do not who you are. If I knew who you are then I could enjoying putting you down.
Anyway lets us focus on your statment: “Third, no one needs any exception to get a party admission into evidence. By definition a party admission cannot have two layers of hearsay. ITS A STATEMENT BY A PARTY”
I need only to address this to demonstrate that nothing you say is worth addressing.
Let’s go to the easy hypo. But first hearsay is a an out of court statement made for the truth of the matter asserted. Alway carry that as your hearsay mantra when deciding whether something is indeed hearsay.
Now the hypo. I testify on the stand at a trial wherein []Farms is a party that I heard the CEO of []Farms state: “Let us deny every claim … I don’t care what lie we have to make up.”
In New York this is hearsay because it is an out of court statment made for the truth of the matter asserted. I am claiming as a defense or in an affirmative case that []Farms denies claims to make profits and not on the merits of the claim.
The Federal Rules of evidence somehow says that this not hearsay although it is. You see the Federal Rules of Evidence are sort of like Judge Judy — let it all in for purposes of efficiency. Haah.
New York has no codified rules of evidence although we do have Model Rules of evidence and plenty of case law.
In New York the above is hearsay as it should be. But it is a party admission so it gets in.
However what happens if under the same scenario I testify that I heard Rogak — after they stiff him on a fee — state that he heard the CEO of State Farm’s say:”Let us deny every claim … I don’t care what lie we have to make up.”
Well now we have two layers of hearsay because we have to out of court of statements made for the truth of the matter asserted. You see. It doesn’t get in.
So consider the denial to Rogak. Another thing recording what someone else said. Here you can get the denial in under the business record exception if you rely on it in the ordinary course of business. You have to lay a foundation. In a way this also acts as a means to sort of authenticate the denial too — but that is another issue.
So Fetid Breeze … please … I don’t want to argue to the foolish anymore then necessary.
Now Rogak let us deal with you. I know the opinion does not get in via a business record. In fact if you get the police report into evidence via the business record exception or simply as a certified public document — the easy way — the statements of the non police officers are not supposed to come into evidence either. No business duty. Try telling that to the App Term 2nd which is like watching an episode of any one of those tawdrey judge shows on television.
Now Rogak I love you. You are my friend. But what the hell were you talking about when you were saying.
“@NYcoolbreeze: The information entered on claim forms is required to be true, and the third party biller has no first hand knowledge of whether the claim information is true. The truth of the facts entered into an insurance claim form is a legal requirement, because false statements on an insurance claim form constitute a crime. An opinion of an expert as to a patient’s condition is not a crime, even if poorly rendered (I’m sure my friend Zuppa would debate that).”
What in God’s name are you talking about. The information in a denial is required to be true also. Of course an opinion of an expert as to a patient’s condition is not a crime. I am dealing with cases wherein the report of the examination is fraudulent because the report lists a host of examination techniques that never occurred thereby turning a 30 second to 1 minute exam into what looks like a 30 to 45 minute exam. That’s a crime. And if the insurance company is knowingly paying for that the insurance company and the doctor are criminals.
Now what if I take the same expert and I listen to him talk to []Farm’s claim maladjuster on a wire. And the maladjuster says “every report you do must show a lack of medical necessity … I don’t care how hurt the guy is and how much he needs treatment … you do that and you get paid good.” And the expert says “You got it.” Well there are a number of crimes there. They won’t be prosecuted because the industry owns the justice system. But crime is crime.
I agree with your last post. I would say that the barrage of fraud started it but the insurance companies were all to happy to run with it, embrace and ridiculously claim everything is fraud. Anyone who thinks insurance companies have the best interest of their policyholders in mind also believes that Sarah Palin would make a good president. Ladies and Gentlemen I give you Rogak.
Radio Free Zuppa signing off.
excuse the typos and correct the words mentally.
Oh I made a mistake. In the Rogak gets stiffed by (edited for content) and decides to tell all hypothetical there is an issue of privilege. Of course you can break the privilege in an action to collect your fee. But I don’t think the material in hypo would be relevant and a Court might frown upon its disclosure unless Rogak could demonstrate some relevance.
Cut it off right here though because the hypo did not involve Rogak suing for money.
Rogak if you ever want to sue an insurance company for money you have been stiffed for let me know. I’ll do it for $25 dollars.
Love you Rogak. If we can’t kid each other who can we kid.
“Zuppa” is Italian for “soup.”
“Rogak” is Polish for “the man with the horns.”
You can move to strike both of the above as hearsay. Oh, what the hell, let it in.