Again – prima facie

This is becoming a very serious issue for the plaintiff’s bar. I was in Civil Court, Queens County today and the court is making it very difficult for the plaintiff to prove a prima facie case. It is no longer satisfactory for the prima facie affidavit to state that the bill has not been paid. Specifically, based on this case and a few others, the affidavit must affirmatively indicate that 30 days have passed and that the denial is untimely or, if timely, that the denial is conclusory, vague or without merit as a matter of law. In my opinion, these cases are not consistent with Mary Immaculate and it places an undue burden on the plaintiff.

This whole thing is so disgustingly ridiculous. As a matter of background I did the case that is the second case always cited to by the App Term: Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]) In that case the lower Court issued an order stating that the only issue for trial — prima facie granted — was whether the DME Company had a license from the NYC Dept of Consumer Affairs. The App Term had just come out with a DME case that held the requirement was inapplicable to insurance companies because insurance companies are not consumers. Supposed to be a slam dunk. Out of nowhere the App Term enunciates this new prima facie rule. The App Term states that it affirmed the lower court which is BS because the lower court gave the Plaintiff prima facie. Now look at it. Logically what it means is that a Plaintiff can only win if the insurance company issued a late or defective denial. This includes at trial. You still need to prove prima facie at trial. The elements are exactly the same. The proof is exactly the same save one is in testimony and the other in Affidavit. Summary judgment is nothing but a trial on paper so sayeth the Court of Appeals — but God only knows what they’ll say next. As Mitch points out the Queens Courts are asking for the Affidavit to state that the denial is late or defective. Well then the Court can just look at the denial and say its neither because it probably is timely and not defective. Plaintiff loses. Everytime a timely properly worded denial is issued the Plaintiff can never win. This is one of the most vile, ridiculous shifts in the law that I have ever seen. The common law is supposed to evolve at a glacial pace. This complete and abrupt shift in the law actually transmutes the law. It is nothing short of prima facie proof of outside third party influence on the Courts. P.S. I brought my case up the App Div and they would have none of it. No Fault is now unconstitutional in the App Term and possibly the whole App Div 2. Citizens you traded your right to sue for medical care and compensation for lost time and pain and sufferring for this idiocy. You got nothing. Sooner or later there will be no more assignment of benefits. Citizens you’ll have to seek reimbursement yourself. And if your denial is timely and not defective — 99% of them; you will not get reimbursed. In this economy you will not get medical care or compensation for lost wages. Let me just say it since I have said enough: The insurance companies through their goverment proxies are denying citizens of this state medical care while robbing the citizens of premium payments. Again I can hear it: Fraud. Fraud. Fraud. Meanwhile all I hear and see is expensive commercials from insurance companies trying to sell insurance in New York State. The fraud that exists is a windfall to insurers as it gives them and their goverment proxies a smoke screen for the real big fraud — New York’s No Fault Law. In reality its ill gotten Profits. Profits. Profits. Insurance companies would fight tooth and nail to keep no fault. Gestapo New York.

If a plaintiff shows in its motion for summary judgment the denial has no merit as a matter of law, how can there be any question of fact to be tried? Plaintiff wins.

“no merit as a matter of law” is a standard that has been out there for a long time when it comes to denials. The same is true for vague. It is for all intents and purposes unreachable. Denied for: “Fee schedule”; “Lack of medical necessity” “unreasonable charges” “fraud” “misrepresentation”; a check mark in the fee schedule box with the word “denied” on the denial; “unreasonable charges” — all will pass muster. To have no merit as a matter of law the denial must say something stupid: “In New York when an accident happens on the 13th of the month there is no coverage” Or be blank. etc. The vague and no merit standards were not there as hurdles to prima facie but winners for providers. Specifically they were never elements of prima facie. They were ways to collect on a claim because the claimant was never properly informed of the reason the claim was denied. That whole standard got whittled away starting with the law that said the Medical Report did not have to accompany the denial. Trying to apply law and logic to what is happening is the very definition of insanity. It’s like arguing democracy with a dictator who maintains that he was elected. The law is meaningless.

I think you guys are misinterpreting the phrase “conclusory, vague or without merit as a matter of law.” If a denial based on defenses such as fee schedule or med. necessity or fee schedule is based on an improper foundation (such as a peer without a factual basis and medical rationale), then it is conclusory, vague or without merit as a matter of law.

I was stunned to consciousness at 4:00 AM. I understand that Cool Breeze was saying. How can it be that a vague or no merit as a matter of law denial only gets you prima facie. It should mean victory right then and there. Another incon$i$tency with law and logic di$played by the recent — $hall I $ay abrupt — prima facie turn around.

Absolutely not Slick. All of the precendent defines “conclusory, vague or without merit as a matter of law” in the same manner as a motion to dismiss in front of a Court that does not like to dismiss anything. See that Cirucci case. The test is what is stated on the denial. If it is sufficient to give notice of the reason why the claim was denied then it passes muster. There is no evidentiary inquiry. Period. Key words “as a matter of law.” The evidentiary inquiry used to be the Defendant’s rebuttal to the prima facie. “Okay you mailed and we did not pay but there was a lack of medical necessity which we are going to prove with our expert hack.” (If the provider doctor shows up you usually have the battle of the hacks) If the denial statement — taken as true — is based upon a ground that has no merit in law then under the new prima facie standard the provider has prima facie. Again my example: “There is no coverage for accidents that occur on the 13th of the month.” There is no law that holds that to be a valid defense so now you get prima facie and that’s it. All the precendent states that all you need for prima facie is proof of timely mailing and no payment within 30 days. According to the precedent a “no merit as a matter of law denial” meant the end of the case. Pay the provider in full. When I refer to precedent I mean I can create a string cite of App Term cases longer then the best White Shoe No Fault Defense Firm can –a string cite in Reaganesque terms that would reach to the moon — a string cite of old to very recent cases that contradicts the App Term’s current prima facie farce. Oh my goodness how can this even be argued. SIU square badges your days of having a job based upon law enforcement incompetence — if you even meet the Ins. Reg qualifications — will soon be over. Just issue a cleary worded timely denial that uses any legally cognizable defense. No Fault Defense lawyers. Soon your unmarketable no fault skills will hit the reality of the pavement as you wear out shoe leather hitting the streets trying to convince some partner at a white shoe no fault defense firm that 100 prima facie bench trials makes you a trial maven. I wish you all good luck.

Here’s another reason why the decision is stupid, using a specific example. The courts have held that the denial itself does not have to contain the medical rationale and factual basis of the peer review report. However, a peer review report that does not have a factual basis and medical rationale is “conclusory”. If a denial merely states, “Denied based on peer review report” but does not include the language from the peer report, how does one prove that the denial based on lack of medical necessity is/is not “Vague, conclusory or without merit as a matter of law” without also putting in the peer report?

What we have all been missing is this: WTF does a denial have to do with setting forth a prima facie case in the first place. There is no precedent for that and the Insurance Law as well as the Regs argue against referral to a denial in order to set forth a prima facie case. “prompt payment” as the charges are incurred. All I see is a lot of smoke — most of it coming from crack pipes and wads of cash that burned its way into our government.