Stipulated to defeat.

All-In-One Medical Care, P.C. v. Government Employees Ins. Co., 2014 N.Y. Slip Op. 24070 (Dis. Ct. Nassau Co. 2014)

This is what happens when we all stip to everything.  Now, we end up in Court with the usual arbitration paradigm where a Plaintiff that provides contemporaneous treatment notes defeats the IME examination and testimony therein.  This is reality.

First, at trial, Court finds Dr. Emmanuel’s testimony was sufficient to estblish a prima facie showing that further services lack medical appropriateness.  Burden now shifts.

“Based upon these findings and other documented examination results, Dr. Dimetrius’s “diagnostic impression” included cervical and lumbar strain-sprain, cervical and lumbar discogenic disease/radiculopathy, and right/left shoulder joint pain secondary to contusion and ligament/tendon tear. His “diagnostic plan” called for “[c]ontinued physical therapy” and a follow-up re-evaluation in 4-6 weeks. Similar findings and recommendations were made in his earlier and later reports.”

At this point, the Court discusses the fact that these notes would not come into evidence absent a proper foundation, and cites to Wilson v. Boden.  The Court is correct on this score.  But unobjected to hearsay is competent evidence, and I will cite to a certain Plaintiff attorney who in the middle to later 2000s reminded me of that when I used to hang out in Civil Court.

As to a missing witness instruction, this is inappropriate since the party for whom this charge will be sougth has to be on notice before he rests his case that this will be charged to the finder of fact.  Defendant, presumably knowing Plaintiff’s witness list, did not put the Plaintiff known as soon as possible that it would seek a witness charge should Plaintiff not bring a witness to trial.  Also, if you do not ask for a missing witness charge, you do not get it.  On this record, the Court inappropriately went down a road that was never opened for traffic.

Can treatment notes at trial win the day for Plaintiff when the judge fully credited Defendant’s expert’s testimony?  Probably not.  This is identical to the line of cases where it was held that a peer report allowed into evidence is insufficient to satisfy a party’s prima facie showing of lack of medical appropriateness since medical necessity can only be discerned through live testimony.

But, I think if Defendant allowed these into evidence, then the Court (if not constrained by Appellate Term precedent that I think is wrong) had every right to consider these reports.  Furthermore, since there was no objection to the reports coming into evidence nor was an adverse inference sought, the Court but for Appellate Term precedent to the contrary was justified in its findings of fact and conclusions of law.

However, given the state of law, Defendant should have won.  Interestingly, these are the kinds of case that should be thrown into arbitration.  Typed up monthly examination notes contemporaneous to the IME, along with (I am guessing) positive nerve tests and MRI’s to corroborate the functional and structural disabilities demonstrated on the clinical examination.