Reiss v Roadhouse Rest., 2010 NY Slip Op 01632 (2d Dept. 2010)
“At the hearings before the JHO, the intervenors failed to prove that GHI was entitled to reimbursement under its insurance contract with the plaintiff. More particularly, the intervenors failed to prove that any part of the settlement proceeds in this action included a recovery for past medical expenses and, thus, could not demonstrate that GHI was entitled to the reimbursement of medical benefits it paid on the plaintiff’s behalf. The intervenors’ sole witness, the attorney representing Healthcare Recoveries, which itself was only an agent retained by GHI to pursue the reimbursement claim, was not qualified to testify regarding the terms of the health insurance agreement between GHI and the plaintiff (see Franklyn Folding Box Co. v Grinnell Mfg., 234 AD2d 505, 506), and his testimony that the plaintiff’s past medical expenses were considered by the parties in reaching their settlement was mere speculation based upon inadmissible hearsay (see generally Matter of Hausknecht v Comprehensive Med. Care of N.Y., P.C., 24 AD3d 778, 779). The intervenors also improperly sought to prove the amount of GHI’s claim by seeking to admit into evidence, as a business record, the consolidated statement of benefits prepared by Healthcare Recoveries from information it obtained from GHI. Since the intervenors’ sole witness also was not qualified to give testimony regarding GHI’s record-keeping practices, that document should not have been admitted into evidence (see Lodato v Greyhawk N. Am., LLC, 39 AD3d 494, 495).”
Many times – and this is happening more frequently – the injured person seeks to have post no-fault IME medical treatment paid for through his or her major medical carrier. When a personal injury case settles or even is tried to a verdict, the major medical carrier through their collection agent will usually attempt to recoup the paid-out benefits against the injured person through recovery on the underlying lien. This will take place in the context of a Civil action. The injured person, assuming there is no assignment of benefits, will then bring a third-party against the no-fault carrier.
The no-fault carrier is subject to suit in a contractual and contribution role of sorts. As we can see, the collection agent of the major medical carrier has some hurdles – not insurmountable but significant – to recoup the benefits from the injured person. Should the major medical carrier fail to make a prima facie case as seen above in Reiss, then the no-fault carrier is not on the hook.
Finally, and somewhat related is that the collection agent cannot get around the business record foundation necessary to put the documentation and interpretation of the major medical carrier’s records into evidence.
This case is interesting to say the least.
