Donoso v Motor Veh. Acc. Indem. Corp., 118 AD3d 461 (1st Dept. 2014)
This came out a few months ago and I meant to post it. There was a case in 2014 where Judge Ciaffa (District, Nassau County) held that stipulated post-IME treatment notes were sufficient to rebut the testimony of an IME physician and to prove that the services were medically necessary. Literally, one month after All in One was published, the First Department published Donoso which says otherwise.
Here are the facts and the law:
“Plaintiff claims that she suffered permanent consequential and significant limitations of use of her lumbar spine as a result of an accident involving a motor vehicle (see Insurance Law § 5102 [d]). At trial, she testified that she was knocked over by a car and thereafter suffered back pain and injuries for which she received physical therapy and epidural injections, and that she underwent surgery four years later. Ambulance and emergency room records admitted into evidence show that the then 65-year-old plaintiff complained of back pain following the accident, and medical records of the treatment about which plaintiff testified show, inter alia, that the surgical procedure was a laminectomy to address spinal stenosis. Plaintiff did not call any treating physician or medical expert to testify.
Defendant moved for a directed verdict at the close of plaintiff’s evidence, arguing that plaintiff could not prove causation without a doctor’s testimony (see CPLR 4401). Contrary to plaintiff’s contention, since defendant’s argument constituted a challenge to the sufficiency of the evidence, and indeed plaintiff opposed defendant’s motion on the ground that her medical records were sufficient, the issue whether plaintiff established prima facie that she suffered a serious injury causally related to the motor vehicle accident is preserved for review (see Geraci v Probst, 15 NY3d 336, 342 [2010]).
Plaintiff presented no evidence of a causal connection between the motor vehicle accident and her lumbar condition. The medical records do not contain an opinion given by a physician that there was a causal connection between the accident and plaintiff’s disc herniation or the spinal stenosis for which she underwent surgery four years later. Indeed, the impression of one of plaintiff’s treating physicians, according to his medical records, was “[d]egenerative disc disease of the lumbar spine.” However, if the records had contained an opinion, the trial court could not have considered them, because the opining physician was not available for cross-examination (see Rickert v Diaz, 112 AD3d 451 [1st Dept 2013]; **2 Daniels v Simon, 99 AD3d 658, 660 [2d Dept 2012]). Thus, defendant was correct that plaintiff could not prove causation without a doctor’s testimony, and its motion should have been granted because “there [was] no rational process by which the fact trier could base a finding in favor of [plaintiff]” (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; see e.g. Ciocca v Park, 21 AD3d 671 [3d Dept 2005], affd 5 NY3d 835 [2005]).”
What’s the lesson of the story? You must have an expert opine that the service was medically necessary. I hope GEICO appealed All in one, but I am not holding my breath.
3 Responses
Just by looking at the excerpt on your blog I can see differences between this case and All-In-One. In All-In-One there was no dispute about causation. And Donoso concerns whether there was a serious injury, while All-In-One is just about whether the patient needed treatment.
Difference without distinction fine sir. On a 5102(d) case, the expert opines on (1) causation; and (2) serious injury.
On a medical necessity case, the expert opines on medical appropriateness of further services. Both are jury questions that cannot be discerned through lay opinion. Thus, to admit treatment notes and to allow that to suffice as expert proof would be problematic.
Your point would be whether such evidence would suffice at arbitration since that is where you file and argue your cases. In that venue, All in one might have value provided the treatment notes opine as to medical necessity.
But to argue that All in One is the elixir that cures the need to present live testimony as to medical necessity at trial is wrong on the law.
Another analogy would be the cases holding that a peer review, even when admitted into evidence, fails to shoulder the burden of lack of medical necessity since live testimony is necessary. Again, in your preferred venue (and mine also) -arbitration- reliable hearsay is given probative value through 11 NYCRR 65-4.5(o).
My only point is that in Court proceedings, All in One is wrong.
First one should understand that an expert opinion actually subverts the fact finder’s job because the expert offers a conclusion. The fact finder then adopts the expert’s conclusion as their own. But the jury instruction is, essentially, if you find them credible then you adopt their conclusion
An expert’s opinion is admissible only after a judge determines the conclusions to be drawn from the facts depend upon knowledge or skill not within the range of ordinary training or intelligence.
so if a judge feels that she can look at medical records in evidence and make a conclusion about whether or not a single examination was sufficient to cut off benefits then who is to say otherwise?