Saturday, December 27, 2008

Med Mal and Procedural case

This is similar to the cases where a peer doctor fails to review sufficient documentation before arriving at an opinion.

"Lack of Foundation to form an expert opinion"

Luu v Paskowski
2008 NY Slip Op 10135 (2d Dept. 2008)


The pertinent portion of this case is as follows:

"[Plaintiff's expert] Zola did not refer to any part of the hospital records, and did not state when the blood loss occurred or how it caused the small bowel obstruction and hematoma. Zola made no reference to any of the hospital records in his affidavit, and did not state that he had reviewed the pleadings and depositions. Zola's affidavit was conclusory and lacked a foundation (see Thompson v Orner, 36 AD3d at 792; Furey v Kraft, 27 AD3d at 418).

Procedural - default viz a vi failure to obtain an adjournment on the record

Diamond v Diamante
2008 NY Slip Op 10117 (2d Dept. 2008)

"plaintiffs and their attorney, nonparty James D. Reddy, appeal from a judgmentwhich, inter alia, upon the denial of the plaintiffs' application for an adjournment, is in favor of the defendants and against the plaintiff, dismissing the complaint, and against the nonparty James D. Reddy awarding costs and imposing sanctions."

"Where, as here, the order appealed from was made upon the plaintiffs' default, "review is limited to matters which were the subject of contest below" (Matter of Constance P. v Avraam G., 27 AD3d 754, 755 [internal quotations marks omitted]; see James v Powell, 19 NY2d 249, 256 n 3; Wexler v Wexler, 34 AD3d 458, 459; Brown v Data Communications, 236 AD2d 499). [*2]Accordingly, in this case, review is limited to the denial of the plaintiffs' request for an adjournment, on the appeal by the plaintiffs, and the award of costs and imposition of sanctions against nonparty James D. Reddy, on the appeal by the nonparty (see Matter of Paulino v Camacho, 36 AD3d 821, 822; Tun v Aw, 10 AD3d 651, 652).

Turning to the merits, "[t]he granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court" (Matter of Anthony M., 63 NY2d 270, 283; see Matter of Steven B., 6 NY3d 888, 889; Matter of Sicurella v Embro, 31 AD3d 651, lv denied 7 NY3d 717), and its determination will not be disturbed absent an improvident exercise of that discretion (see Davidson v Davidson, 54 AD3d 988). "In making such a determination, the court must undertake a balanced consideration of all relevant factors" (Matter of Sicurella v Embro, 31 AD3d at 651), including "the merit or lack of merit of the action, extent of the delay," the number of adjournments granted, the "lack of intent to deliberately default or abandon the action" and the length of the pendency of the proceeding (Belsky v Lowell, 117 AD2d 575, 576; see Matter of Claburn v Claburn, 128 AD2d 937, 938)."

The future is bright for medical necessity msj's

Again, this is not necessarily a pure no-fault post. However, this is a no-fault post by analogy. I came across a doosy of a decision and order from the Appellate Division, Second Department. It kind of cuts both ways on two different issues. Hopefully you will see where I am going with this, after you see the excepts I am publishing.

Geffner v North Shore Univ. Hosp.
2008 NY Slip Op 10124 (2d Dept. 2008)

To support her allegations [of medical malpractice and in opposition to Defendant's motion for summary judgment], the plaintiff submitted the expert affidavit of Charles Phillips, a physician certified in emergency medicine. Dr. Phillips' affidavit was of no probative value, however, as it contained opinions outside his area of expertise and did not establish a foundation for his opinions (see Glazer v Choong-Hee Lee, 51 AD3d 970; Mustello v Berg, 44 AD3d 1018, 1018-1019; Behar v Coren, 21 AD3d 1045, 1046-1047)...."

"Finally, the plaintiff submitted the expert affirmations of Howard C. Adelman, a physician certified in clinical pathology and cytopathology, which alleged that the defendant doctors misdiagnosed the decedent as suffering from myelodysplastic syndrome, acute myeloid leukemia, and adenocarcinoma. Dr. Adelman's affirmations were insufficient to raise a triable issue of fact with respect to the alleged misdiagnoses since they failed to address the evidence relied upon by North Shore's experts in rendering their opinions that the diagnoses were correct (see Germaine v Yu, 49 AD3d 685, 687; Fhima v Maimonides Med. Ctr., 269 AD2d 559, 560).

Issue #1: Doctors who give opinions outside their scope of expertise.

This is a problem, however, an accounting of their skills and expertise should get one of the trouble that was wrought in this cae

Issue #2: Failure to address movant's proof.

Big problem in no-fault litigation.

Thursday, December 25, 2008

Accelerated Judgment not availabe in criminal proceedings

Yes, this is a no fault blog that I maintain, mostly for my own amusement. I take pride in the level of scholarship set forth in this blog. I try to avoid topics that do not apply either directly or tangentially to the arena of PIP issues. This will be a rare exception.

In my daily reading of the App. Term criminal cases, I found an interesting issue that has satisfied my curiosity. Likewise, I find the outcome disturbing.

The case that is interesting is entitled: People v Manupelli (Christine), 2008 NY Slip Op 28520 (App. Term 2d Dept. 9th and 10th Jud. Dis. 2008). It says the following:

In this prosecution based on defendants' alleged violation of local ordinances requiring landfill permits and barring the diversion of rainwater onto neighboring properties, defendants moved pretrial to dismiss the accusatory instruments pursuant to CPLR 3211 (a) (7). The Justice Court granted the motion, concluding, in essence, that there was a legal impediment to conviction (CPL 170.30 [1] [f]), finding that defendants' proof in support of the motion established both their entitlement to an exclusion from the permit requirement and the People's inability to prove, on the facts, that defendants are legally responsible for the alleged illegal diversion of rainwater onto a neighbor's property.

Defendants' motion should have been denied. With rare exceptions (e.g. CPL 60.10), the CPLR is inapplicable to criminal proceedings (CPLR 101; CPL 1.10 [1]; People v Knobel, 94 NY2d 226, 230 [1999]; People v Crisp, 268 AD2d 247 [2000]; People v Silva, 122 AD2d 750 [1986]; see generally People ex rel. Hirschberg v Orange County Court, 271 NY 151, 155 [1936]). The authority of a criminal court to dismiss an information pursuant to a pretrial motion (see CPL 170.30) does not include a motion for accelerated judgment available to civil court litigants (see CPLR 3211, 3212), and, in any event, the court had no authority to dismiss an accusatory instrument on the ground that, in its view, the People could not produce sufficient [*2]evidence to prevail at trial (e.g. People v Asher, 16 Misc 3d 89, 91 [App Term, 9th & 10th Jud Dists 2007]). Thus, on this record, there were no grounds to dismiss the accusatory instrument upon defendants' pretrial motion (see CPL 170.30).

My thought has always been this: why is it that somebody who risks going to prison or ending up with legal impediments attendant to a criminal conviction have markedly less procedural rights than a civil litigant? That has bothered me to no end and, yet in New York, that is the rule. You need not be a criminal attorney to see how wrong this all is. Yet, this is the world we live in.

Food for thought this Christmas.


I was beaten by a fellow blogger on the verification issue...

I found this story a week before it was brought to life by a fellow blogger, but since the fellow blogger published it first, he gets deserved credit. the name of the case is: Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc.3d 1 (App. Term. 2d Dept. 2008).

This was the case involving a premature follow-up additional verification and the preclusion sanction due to this occurring. It is interesting to see the Second Dept taking up this issue. The dissenter at the Appellate Term observed other Appellate Division cases that found the sanction of preclusion unwarranted in this factual scenario. This is probably what lead the App. Div to grant leave as to this issue. As I have learned recently through personal experience in two recent matters, the App. Div. does not like to grant leave to no fault matters and does not like motions to reargue when a non-articulated argument, if properly preserved, would reverse their opinion and order.

That is the only case of interest on the horizon that i have seen lately...

Tuesday, December 9, 2008

A new day for decisions...

I have an observation here that I want to share with those who read this - which I think consists of me, myself and I. The decisions in the realm of no-fault have been getting quite redundant. We used to always wait for the next big pronouncement from an appellate court, or even an observation from a lower court. Now, we just look to see when the next breaking or shattering of the status quo will occur.

With the above introduction in mind, now to the cases.

A.M. Med., P.C. v State Farm Mut. Ins. Co.
2008 NY Slip Op 28487 (App. Term 2d Dept. 2008)

Failure to properly caption - you better reject that paper within 2-days or you have waived the


Plaintiff argues that the absence of a caption setting forth the name of the court, the venue [*2]and the index number in the 90-day demand rendered it a nullity, as it was not in compliance with CPLR 2101 (c). However, the demand set forth the name of the case, including the name of the assignor, as well as the date of the loss. Consequently, in our opinion, the omissions were merely defects in form to which plaintiff's counsel could have objected by returning the demand to defendant within two days of its receipt, specifying the nature of the defect (CPLR 2101 [f]). Plaintiff's failure to do so waived any objection to the defect (see Deygoo v Eastern Abstract Corp., 204 AD2d 596 [1994]). right to challenge that defect.

Psychmetrics Med., P.C. v Travelers Ins. Co.
2008 NYSlipOp 52466(U)(App. Term 2d Dept. 2008)

This is another notice to admit case. Nothing special, right? Well, this is the first citing of Art of Healing Medicine, P.C. v Traveler's Home & Mar. Ins. Co., ___ AD3d ___, 2008 NY Slip Op 07846 [2d Dept 2008], the Appellate Division's affirmance of the Dan Medical "business record foundation" cases in order to establish a prima facie case.... Exciting, right?


My last words of the day...

I love the commentary from the Appellate Term on CPLR 2101. Realistically, how many law practices can realistically reject a non-captioned filing within two days of receipt? A better question - how many law practices can reject a "hidden" affidavit that is not captioned within a properly captioned motion within two days of its receipt? I know I cannot - and my practice pales in comparison to that of the larger firms out there - e.g., Baker, Sanders (among others)...

And then there is Art of Healing - vindication to those who have pushed through Dan Medical and its progeny...

Sunday, November 16, 2008

Some newer cases

It has been a real quiet few months in our world of law. Nothing too substantial has come out recently. There have been some procedural cases, which have an effect on all areas of law. Here are some of the cases I have found which have interesting overtones to them:

Stipulation of discontinuance with prejudice = presumption of res judicata


Support Billing & Mgt. Co. v State Farm Mut. Ins. Co.
2008 NYSlipOp 52226(U)(App. Term 2d Dept. 2008)

"A stipulation of discontinuance which specifies that it is "with prejudice" raises a presumption that the stipulation is to be given res judicata effect in future litigation on the same cause of action"

Discovery on a precluded defense requires proof of a timely denial - timely denial means more than it being facially timely...

Corona Hgts. Med., P.C. v State Farm Mut. Auto. Ins. Co.
2008 NYSlipOp 52185(U)(App. Term 2d Dept. 2008)

"Where a discovery demand concerns matters relating to a defense which a defendant is precluded from raising, it is palpably improper, notwithstanding the fact that the plaintiff did not specifically object thereto (see A.B. Med. Servs. PLLC, 11 Misc 3d 71). As defendant did not establish that it timely denied plaintiff's claims, to the extent defendant seeks discovery in support of its defense of lack of medical necessity, discovery of such precluded matter is palpably improper"

Court sanctions more than one discovery device being demanded simulataneously

First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co.

2008 NY Slip Op 51963(U)(App. Term 2d Dept, 2008).

In addition, defendant is entitled to conduct an EBT of plaintiff notwithstanding the fact that defendant also served a demand for discovery and inspection of documents (see Woods v Alexander, 267 AD2d 1060, 1061 [1999]; Iseman v Delmar Med.-Dental Bldg., 113 AD2d 276 [1985]; JMJ Contract Mgt. v Ingersoll-Rand Co., 100 AD2d 291, 293 [1984]).

CCA 1201 - give us a reason for allowing an extraterritorial subpoena

Bronxborough Med., P.C. v Travelers Ins. Co.
21 Misc.3d 21 (App. Term 2d Dept. 2008)

Inasmuch as plaintiff's moving papers failed to establish that the interests of justice would be served by permitting plaintiff to serve, outside the City of New York and the adjoining counties, a subpoena which would require defendant's employee to appear at trial, and, in addition, did not set forth the location at which plaintiff sought to serve the subpoena, plaintiff's motion was properly denied.

Don't send the peer or IME upon demand - the courts will forgive you, but the DOI probably will not.

Careplus Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co.

21 Misc.3d 18 (App. Term 2d Dept. 2008)

In response to a provider seeking to preclude an insurance carrier from raising a defense of lack of medical necessity based upon the pre-suit failure to turn over the peer or IME report in accordance with the regulations, the Appellate Term said no so fast...

"The Insurance Department Regulations provide no sanction for an insurer's failure to provide a peer review report upon the written{**21 Misc 3d at 20}{**21 Misc 3d at 20} request for one by a provider (see e.g. A.B. Med. Servs. PLLC v Clarendon Natl. Ins. Co., 12 Misc 3d 143[A], 2006 NY Slip Op 51415[U] [App Term, 2d & 11th Jud Dists 2006]). While plaintiff urges the court to impose the sanction of preclusion here, we decline to do so because "[h]ad it been the intent of the Department of Insurance" to impose such a sanction, "it would have so provided"


Do not file a notice of trial without obtaining a final order of preclusion or dismissal, etc.

Iscowitz v. County of Suffolk
54 A.D.3d 725 (2d Dept. 2008)

"The plaintiffs waived any objection to the adequacy and timeliness of the disclosure by filing a note of issue and certificate of readiness prior to moving pursuant to CPLR 3126 for the imposition of a discovery sanction "

Preclusion - The Appellate Division spells out why we should not sign preclusion stipulations.

Allen v Calleja
2008 NY Slip Op 08685 (2d Dept. 2008)

To warrant preclusion, "the Supreme Court must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious" (Assael v Metropolitan Tr. Auth., 4 AD3d 443, 443; see CPLR 3126[2]; Moog v City of New York, 30 AD3d 490). Such conduct may be found where, for example, a party repeatedly fails to comply with court orders directing it to produce certain discovery without adequate excuses therefor


And when it comes to the inability to invoke "preclusion" based upon a single failure to comply with a conditional order of preclusion (when this was the first discovery order in the case), the Appellate Term, First Department said the following:

Pelham Parkway Neuro & Diagnostic, P.C. v. Liberty Mut. Ins. Co.

16 Misc.3d 130(A)(App. Term 1st Dept. 2007)

In this action to recover assigned first party no-fault benefits, the drastic sanction of precluding defendant from asserting its defense of exhaustion of policy limits was unwarranted in the absence of a showing that defendant's single failure to comply with the parties' discovery stipulation was willful and contumacious

Thursday, October 16, 2008

And then the Appellate Division, Second Department spoke

Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co.
2008 NY Slip Op 07846 (2d Dept. 2008)

The Appellate Division Second Department has now, in pertinent part, decided to follow Dan Medical as it relates to the necessity for the records to be entered into evidence for the truth of the matter asserted.

To quote the court: "The plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law. The plaintiffs' medical service providers failed to demonstrate the admissibility of their billing records under the business records exception to the hearsay rule (see CPLR 4518[a]"

So there goes the literal interpretation of Mary Immaculate (discussed in the prior post) that the Plaintiffs' bar has relied upon to meet a prima facie case. Indeed, the Appellate Term, First Department has been adamant that the billing forms do not need to be placed into evidence to make a prima facie case.

Yet, let us not forget that the Appellate Division, First Department, adopted the Mary Immaculate rule in Countrywide Ins. Co. v. 563 Grand Medical, P.C., 50 AD3d 313 (1st Dept. 2008), when they held as to prima facie in a trial denovo setting that:

"Defendant medical provider established prima facie its entitlement to judgment as a matter of law by demonstrating that the necessary billing documents were mailed to and received by plaintiff insurer and that payment of the no-fault benefits was overdue"

I therefore do not think this case will represent much of a shift in the law, as it stands today. What this case opens up the door to, at some point, is a Court of Appeals ruling should the Appellate Division, First Department continue to follow Mary Immaculate. This would render a split in the Appellate Divisions, which would allow the prima facie issue to make it all the way to the top of the appellate food chain.

Wednesday, October 15, 2008

Prima facie: schizophrenia from the Appellate Term

Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co.
2008 NY SlipOp 52046(U)(App. Term 2d Dept. 9th and 10th Jud. Dis. 2008)

I have been waiting for the day when a Henig Hospital case with the famous Hospital Receivable's third-party billing affidavit (which we all know is insufficient to lay a proper foundation for entry into evidence of the billing forms) to be evaluated by the Appellate Term, Second Department.

Let me explain. The famous Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 (2d Dept. 2004) case is a Appellate Division, Second Department case, which involved a Henig third-party biller affidavit. The Apppellate Division, as we all know, said that a prima facie case consists of submission of a claim form, and proof that the bill is overdue. Therefore, Mary Immaculate was granted summary judgment.

Here, the Appellate Term today ducked the prima facie issue. The Court said that the issue is not preserved since the issue was not raised in the initial answering papers of New York Central Mutual. Therefore, the issue was not before the Court.

However, the case which this case "cf" cited said that the issue of admissiblity of business records may be raised for the first time on appeal. See, Bath Med. Supply, Inc. v Deerbrook Ins. Co. , 14 Misc 3d 135(A)(App. Term 2d and 11th Jud. Dis. 2007). Yet, this case said that an appellate court may not do this. My suspicion is that the Appellate Term did not want to deal with the fact that these third-party affidavits are sufficient before the Appellate Division, yet are not acceptable before the Appellate Term.

I feel that at some point, we are going to have a prima facie showdown in the Second Department. I believe this will happen soon.

Tuesday, October 14, 2008

Escaping the four corners of the denial

At this point in our PIP jurisprudence, it has been taken for granted that a defense of medical necessity extends to the four corners of the peer review or the medical examination which recommends cessation of treatment.

The foundation for the principle appears in 11 NYCRR Sec. 65-3.8(a)(4), which states the following: "If the specific reason for a denial of a no-fault claim, or any element thereof, is a medical examination or peer review report requested by the insurer, the insurer shall release a copy of that report to the applicant for benefits, the applicant's attorney, or the applicant's treating physician, upon the written request of any of these parties."

In construing this regulation, the Appellate Division observed in A.B. Medical Services, PLLC v. Liberty Mut. Ins. Co. 39 A.D.3d 779 (2d Dept. 2007): "The applicable regulations provide that if a no-fault claim is denied in whole or in part based on a medical examination or peer review report requested by the insurer, then the insurer shall release a copy of that report to, among others, the applicant or its attorney, upon written request. Had it been the intent of the Department of Insurance to require the carrier to set forth a medical rationale in the prescribed denial of claim form, it would have so provided"

Thus, it is has been assumed that the the peer or IME is an extension of the denial. This was the methodology behind the Appellate Term, Second Department's holding in A.B. Medical Services, PLLC v. Liberty Mut. Ins. Co. 10 Misc.3d 128(A)(App. Term 2d Dept. 2005), prior to it being reversed by the Appellate Division, Second Department. See, 39 AD3d 779. In fact, all the Appellate Division really said was that the peer report or IME report does not have to be annexed to the denial.

Therefore, recent Appellate Term, First Department cases are quite questionable. In
Mollins v Allstate Ins. Co. 20 Misc 3d 141(A)(App. Term 1st Dept. 2008), the Appellate Term, stated the following: "In opposition, defendant failed to raise a triable issue since it did not submit the IME report upon which its denials were based or any other evidentiary proof to support its defense of lack of medical necessity (see Vista Surgical Supplies, Inc. Travelers Ins. Co., 50 AD3d 778 [2008]; Response Med. Equip. v General Assur. Co., 13 Misc 3d 129[A], 2006 NY Slip Op 51765[U] [2006]).

And the Appellate Term case, Response Med. Equipment said the following: "With respect to the $650 claim for assignor Edwin Milanes, defendant failed to support its defense of lack of medical necessity with the peer review upon which the denial was based, or any other competent proof in admissible form."

It therefore appears arguable that an insurance carrier may escape the four corners of the denial, as amplied by the peer review and denial. It should be interesting to see how the Appellate Term, First Department and the other courts rule when the "Cerucci" four corner rule collides with the "other competent proof in admissible form" rule.




Sunday, October 12, 2008

Dan Medical is safe for now (well sort of)

Bajaj v General Assurance
2008 NYSlipOp 84460(U)(2d Dept. 2008)

"Motion by the plaintiff for leave to appeal to this court from an order of the Appellate Term, Second and Eleventh Judicial Districts, dated October 22, 2007, which reversed a judgment of the Civil Court of the City of New York, Queens County, entered February 9, 2006.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is denied."

Comment: Baja was the case that held that a Plaintiff cannot make its prima facie case based upon a notice to admit. This was the companion to Empire State Psychological Servs., P.C. v Travelers Ins. Co. (App. Term 2d Dept. 2007), which held that interrogatories admitting receipt and the bills being overdue was insufficient to make a prima facie case. The above cases were ruled on as they were because the Appellate Term, Second Department, has consistently opined that the billing claim forms need to be entered into evidence.

This is in contrast to the Appellate Term, First Department, which has routinely held that a prima facie case is set forth through a literal interpretation of Mary Immaculate Hospital as observed in Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc.3d 8 (App. Term 1st Dept. 2007), to wit:

"[d]efendant insurer admitted that it received the no-fault claims at issue and made partial payment on the claims. Inasmuch as defendant's verified answers to the interrogatories constituted admissions of a party, which are admissible as evidence, defendant may not now be heard to argue that plaintiff failed to submit proof that the claims had been mailed and received, and that they were overdue (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). To the extent that Empire State Psychological Servs., P.C. v Travelers Ins. Co. (13 Misc 3d 131[A], 2006 NY Slip Op 51869[U] [2006]) supports a contrary conclusion, we decline to follow it."

Had Baja made its way to the Appellate Division, Second Department, then it is likely that the world of Dan Medical would have gone the way of vicarious liability in leasehold cases following the Graves Amendment.

Saturday, October 11, 2008

Appellate Division, Fourth Department opines on the issue of non-cooperation

Progressive Ins. Co. v Strough
2008 NY Slip Op 07463 (4th Dept. 2008)

We further conclude that the court properly denied that part of plaintiff's cross motion for [*2]summary judgment declaring that plaintiff has no duty to indemnify defendant for claims arising from the motor vehicle accident in question, including claims for no-fault benefits. Plaintiff failed to support its motion with evidence provided by an individual with personal knowledge of the facts (see Chiarini v County of Ulster, 9 AD3d 769, 769-770), and the documents provided by plaintiff in support of the cross motion do not establish that defendant failed to cooperate with plaintiff, as alleged in the complaint.

Comment: Does the no-fault endorsement provide a non-cooperation defense? I remember a case entitled Utica Mut. Ins. Co. v. Timms, 293 AD2d (2d Dept. 2002) , which says otherwise. There is another case from the Fourth Department a few years ago, which opined on the non-cooperation defense as it relates to no-fault benefits. See, Simmons v. State Farm Mut. Auto. Ins. Co. 16 A.D.3d 1117 (4th Dept. 2005).

Causation - Be aware of seeking a trial de novo after a master arbitrator affirms an award

State Farm v. Stack
2008 NY Slip Op 07651 (2d Dept. 2008)

"A no-fault arbitration tribunal twice concluded that the defendant, James Stack, was entitled to benefits arising from an automobile accident. Subsequently, the plaintiff, State Farm Automobile Insurance Company (hereinafter State Farm), commenced a de novo plenary action seeking a determination that medical expenses for Stack's hospitalization were for a condition unrelated to the accident and that Stack failed to demonstrate his entitlement to lost earnings."

"An insurer seeking to deny no-fault benefits on the basis that a claimant's condition is not causally related to an accident "has the burden to come forward with proof in admissible form to establish the . . . evidentiary foundation for its belief' that the patient's treated condition was unrelated to his or her automobile accident" (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 19-20). The testimony of State Farm's expert witness, an anesthesiologist and pain management specialist, that his opinion was based solely upon a hospital discharge summary and insurance claim form, rendered his opinion speculative and of little probative value (see Gordon v Tibulcio, 50 AD3d 460)."

"In contrast, the testimony of Stack's expert witness, a neurologist who based his opinion upon his examination of Stack and his review of Stack's relevant medical records, including, inter alia, CT scans and magnetic resonance imaging, and determined that Stack's symptoms first appeared within two weeks of the accident and progressively worsened, was sufficient to establish that Stack's condition was causally related to the accident (see Scudera v Mahbubur, 299 AD2d 535, 536)."

Comment: Another case where the Appellate Courts are loathe to sustain an insurance carrier's proof that a service is not causally related to a motor vehicle accident.

Avoid the invectives

Great Wall Acupuncture, P.C. v General Assur. Co.
2008 NY Slip Op 28350 (App. Term 2d Dept. 2008)


This case has been commented on numerous times before. It is one of many Mallela discovery motions that are granted as long as there is some shred of evidence that there is an improper incorporation issue. This follows the recent Appellate Division case of One Beacon Ins. Group, LLC v. Midland Medical Care, P.C., 2008 N.Y. Slip Op. 06813 (2d Dept. 2008), which held as follows:

"However, in opposition to the motion, the plaintiffs submitted sufficient evidentiary proof to raise an issue of fact as to whether Proscan was actually controlled by a management company owned by unlicensed individuals in violation of the Business Corporation Law"Accordingly, the appellants' motion for summary judgment was properly denied with respect to all three causes of action, which allege fraudulent incorporation."

"The Supreme Court properly granted that branch of the plaintiffs' cross motion which was for disclosure of certain financial documents. Contrary to the appellants' contention, the plaintiffs were not required to make a showing of “good cause” for such disclosure"

I like this case for the following quotation: "Although plaintiff contends that the court erred in denying the cross motion for an order sanctioning defendant and defendant's counsel, in our opinion, the court providently exercised its discretion. We remind plaintiff's counsel that "[f]rivolous conduct shall include the making of a frivolous motion for costs and sanctions" (Rules of the Chief Administrator [22 NYCRR] § 130-1.1). We further caution plaintiff's counsel to refrain from including invective and ad hominem attacks in his papers."

Fee schedule defense - competent evidence?

OS Tigris Acupuncture, P.C. v Liberty Mut. Insurance Co.
2008 NY Slip Op 51996(U)(App. Term 1st Dept. 2008)


"Nor did defendant produce competent evidence in support of its defense of nonconformity with the applicable fee schedule (see Continental Med. P.C. v Travelers Indem. Co., 11 Misc 3d 145[A], 2006 NY Slip Op 50841[U] [2006])"

Comment: I am going to assume that the movant did not provide a copy of the applicable portions of the fee schedule and annex the Department of Insurance Letter allowing the carrier to pay the chiropractor or physician fee schedule for acupuncture or a geographical rate it deemed proper.

Fee schedule defense - Appellate Division gives due deference to the DOI

Forrest Chen Acupuncture Services, P.C. v. GEICO Ins. Co.
2008 N.Y. Slip Op. 07211 (2d Dept. 2008)

"Furthermore, the defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint by submitting evidentiary proof that no fee schedule for the reimbursement of acupuncture treatments existed in 2001, and that it properly limited payment to “charges permissible for similar procedures under schedules already adopted” (11 NYCRR 68.5[b]; see Insurance Law § 5108; Ops Gen Counsel N.Y. Ins Dept No. 04-10-03 [October 2004] ). In opposition to the cross motion, the plaintiff failed to raise an issue of fact as to whether reimbursement for its acupuncture services was properly limited."

Comment: I would opine that "competent evidence" to support a prima facie fee schedule defense would include (besides a timely denial) the following: (a) Pertinent portion of the fee schedule including conversion factor and CPT Codes with relative values; (b) DOI letter indicating it is proper; and (c) Affidavit from claims examiner indicating compliance with the foregoing.