Consolidated Imaging P.C. (Rafailova) v Travelers Indem. Co., 2011 NY Slip Op 50159(U)(Civ Ct. Richmond Co. 2011)
I did not miss this case. I just avoid discussing Civil Court cases that will be overturned as a matter of course and are bereft of accurate reasoning. There is a lot to say about this case, and I will keep it brief.
First, the “hearsay” objections are without merit for the reasons that we have seen over the last few years. My previous posts address this topic ad nauseum.
Second, the”generally accepted language” that was quoted in the opinion, which cited to various lower court cases was probably rejected in Enko Enters. Intl., Inc. v Clarendon Natl. Ins. Co., 2010 NY Slip Op 52267(U)(App. Term 1st Dept. 2010), when the Appellate Term spelled out why the peer review prima facie proved the lack of medical necessity for the durable medical equipment in that matter.
Third, you cannot say that the difference in specialties goes to the weight of the evidence, yet cite to Judge Hirsch’s opinion which holds that this particular defect in the peer review or trial testimony is per se fatal.
Fourth, the insurance law and the regulations do not allow pre-certification. That is the basis for the Magnacare storm that has been brewing over the last year against Geico, and which may spell a 7-8 figure disaster for that carrier.
Fifth, the nature of all insurance contracts, whether they be auto or commercial, involve some degree of Monday Morning Quarterbacking. This is why 3 levels of appeals are allowed in the commercial health insurance paradigm, followed by an Article 78 if a party is unhappy.
This was just a ridiculous decision. However, after receiving an affirmation in opposition from an attorney who attached this case with the Judge’s face on it, I felt the need to respond.
Lastly, I am not offering an opinion as to the persuasiveness or lack thereof regarding the doctor’s testimony. The trial testimony may very well have been conclusory or self contradictory. It could have been consistent and logical. That does not concern me. But, the methodology that was utilized to reach the ultimate conclusion was improper. I find this troubling.
8 Responses
As a general matter I really don’t like anyone. Providers or insurers or lawyers or our system of justice. I do love evidence.
This is one of the better decisions I have read in a long time. The manner in which the Court addresses and eliminates issues that might confuse is outstanding. Explaining all and applying some.
His knowledge of the IME racket is dead on. The below is beautiful.
“Who determines what records are forwarded to the peer reviewer, the carrier or the third-party vendor? Is there a correlation between the volume of referrals the third-party vendor receives from a carrier and the opinion rendered by the peer reviewer? Depending on what records are sent for review, may in fact predetermine the result. Should not the peer reviewer base his or her decision only on the same records the referring physician used to make the referral? If the peer reviewer has either more or less reports, the results are potentially being skewered. If the goal is to determine if the health related services in question are “medically necessary” as having been determined by the referring health professional, the peer reviewer should only be in possession of the information relied upon by the referring health professional.”
It’s a shame when intelligence and the application of logic is met with derision.
Because the case goes against prior holdings in a silly area of law. Because a Court that held the Notice to Admit could not be used to prove receipt of a bill is going to reverse this decision — a Court that confused judicial admissions with an exception to the hearsay rule; how inane. How puerile.
Just because this Court will reverse it — does not mean a damn thing when it comes to the real law. And I would submit that the author of this decision has more intelligence then the Justices that sit on the Court that will reverse his decision combined.
What would we say to lower court in the 1800s that decided that a person was a person and should have the rights of a person. “Aw that will never get past the Court that decided Dredd Scott.”
This decision sounds a lot like the GEICO decision at the App Term First.
In no fault when something is called “bereft of accurate reasoning” it should be snatched up, read and will probably end up a diamond mine of wisdom.
Both Appellate Terms and the Fourth Department in MHL Article 10 cases have rejected this Court’s reasoning. Say what you want about the Appellate Terms, but the Fourth Department is a spirited and pretty well versed bench. I put them after the First Department in reasoning prowess.
I would put the Fourth Department ahead of all the Divisions. So we agree there. I would need a definition of what “this Court’s reasoning” is.
This is my take away. The peer review process is so ridiculous as to be as a matter of law bereft of credibility.
Now lets dumb it down for me because some of the lingo and cases you’re slinging are beyond my base knowledge.
When I was a prosecutor I could not have a cop come in and testify that he found this glassine of what in his training and experience appears to be rock crack cocaine on the Defendant. Place the glassine of rock into evidence and then have my lab guy come in and grab the glassine and say “Yep tests showed this to be crack.”
I need a foundation. A chain of custody. Or I can just convict people like Nassau County using a lab that didn’t know where the hell anything was.
The same for the myriad reports. What was reviewed by the prescribing doctor. Did the peer review miscreant review the same exact documents. More. Less. Or were they documents for a patient named Boris Stalin instead of the subject patient Jacques St. Pierre. I have seen some bizarre mixups.
The Court stated that this was not a Wagman issue because a party cannot object to its own medical records.
Well Jason this is my last comment on any blog anywhere. I get too worked up and have to distance myself from this stuff. I will continue to read and be informed by what I believe is a great asset to the legal community — No Fault Defender.
I hope you and your family prosper and are healthy.
You raise good points Ray. Who will be left if you disappear?
JT – very good pick up on the Magnacare issue. That issue is ripe for a good class action attorney.
This judge is always good for an entertaining decision; at least he writes well!
He really does. The New York Times had a piece on him 2 months ago.
“First, the “hearsay” objections are without merit for the reasons that we have seen over the last few years. My previous posts address this topic ad nauseum.”
LOL, hearsay objections have no merit only if they are raised by the provider in a case that ends up before the App Term 2nd.
Of course, “Dan Medical” is one big fat hearsay objection that the Term regularly uses to dismiss fundamentaly valid claims for healthcare reimbursement.