Bajaj v GEICO, 2012 NY Slip Op 51106(U)(Dis. Ct. Nassau Co. 2012)
The first thing someone asks me in Brooklyn is whether “you have a substitute peer doctor”. I shrug my shoulder for the simple reason that either I will have a medical necessity framed issue hearing, or a record that will go to the 15th Floor and be decided in 2015 reversing the order of the Civil Court precluding my doctor, and granting me another day in court. When the case is remanded, that judge will be at Supreme Court, down the block.
I think you know what he case holds based upon the above. I will summarize:
1) Substitute peer may testify.
2) Case from Judge Buggs is considered wrong on constraint of Appellate Term precedent.
3) Original peer does not have to be in evidence for substitute to try case.
4) Acknowledgment that cross-examination of substitute peer doctor may bear more fruit than crossing original doctor, due to the “four corners” rule.
Read the case. Harold Soloman won in the end.
8 Responses
Maybe Judge Buggs will be Justice Buggs when the appeal is heard. Maybe she will sit at the App Term 2nd.
Let me ask how come the App Term 2nd can refuse to follow the App Div 2nd but Judge Buggs is constrained to follow the App Term 2nd. Doesn’t the conduct of the App Term 2nd warrant the refusal by lower courts to follow the precedent of higher courts.
I certainly hope that there were some Judges who refused to follow the Dredd Scott decision.
If I was a civil court Judge in the 2nd I would celebrate every reversal by the App Term 2nd of my decisions and push for higher review.
Keep shrugging your shoulders J.T. and maybe you’ll develop some traps as big as the Captain’s.
Me thinks this court misapprehends its duty when faced with a substitute peer review. The trial court’s duty, as per Dilon v. NY Central, is to determine “whether the rationale for the conclusion in the peer review report, upon which defendant’s denial of claim forms was based, was correct”
Without the original peer into evidence how does the court fulfill the function the appellate court laid upon its lap?
I will tell you how by deciding that “current Appellate Term precedent appears to require nothing more than testimony from a medical expert setting forth a facially sufficient factual basis and medical rationale for the defense..”
and this guy is being groomed for the Supreme Court! This decision shows Nassau is way more corrupt than Queens.
At least Al’s cousin cited to the proper cases and announced the proper standards to be applied.
If I were more of a cynic than I already am, I would say the message from the Appellate Term 2nd to the Insurer is “don’t even bother including a sound factual basis and medical rationale in your initial peer review, you can fix/supplement/amplify it on the witness stand (effectively ending the need to PROPERLY deny the claim within 30 days).
If I were even MORE of a cynic than that, I’d say the message to no fault plaintiffs is “go away already, we don’t like you!”
A case a few years ago from the App. Term First Dept, Response v. GA, I think intimated that mindset.
The App Term has already made it clear that a provider cannot ever make out a prima facie case unless 1) denial is late (with myriad exceptions instead of the exceptional exemption) or 2) basically fails to identify the bill and say denied.
As such I wonder why Jason even has this blog. I wonder why law is analyzed. The App Term is there to kill no fault providers. I’ve been looking at some other areas of law there too. Landlords cannot lose.
If I were a cynic I’d say that Court is there to assist in the robbing of working people.
Considering the fact that New York No-Fault is the only field of law in the United States of America where the defendant has to overcome the presumption that the plaintiff is entitled to win, it’s hard for me to feel pangs of injustice just because the Appellate Term permits a defendant to present some evidence at trial in its own defense.
Larry, I hear Fox News is hiring.
Show me where in New York where there is a presumption that the Plaintiff is entitled to win.
Let us not forget Larry that New York stripped its citizens of their right to sue for personal injury, lost wages and medical bills due to the negligence of others. You must meet threshold.
What a windfall to insurance companies.
So why don’t we get rid of No Fault Larry if its so bad. Maybe we can get rid of those incessant horrible commercials that the insurance companies spend 100s of millions playing; they do it out of love Rogak — not for the lucrative money that one can make in auto insurance in New York where you are protected from suit and do not have to pay medical benefits.
New York is the only state in America where with the official sanction of the government insurance companies collect premiums without paying claims.