Thanks to Damin Toell for the title. Genius.
Those of you that haven’t been living under a rock or lobotomized probably are aware of the recent cases from the Appellate Term. JT wrote about them. I wasn’t in the mood to read them or write about them. I’m still not. But, I’d be remiss if I didn’t.
“An expert may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion,”[1] so says the Appellate Division, Second Department. In fact, “an expert’s opinion not based on facts is worthless,”[2] so says the Court of Appeals. Worthless.
The Appellate Term, in Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 2010 NY Slip Op 50987(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010), on the other hand, held
Moreover, we note that, while defendant’s peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in Rafailova’s records were true, the treatment allegedly provided was not medically necessary. Therefore, as defendant was not using the underlying medical records for their truth, such records were not being used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff’s argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided was not medically necessary is irrelevant
So worthless, then, doesn’t have the same definition at the Civil Court and the Appellate Term.[3] Right.
Wait a second. Hold on. What about Innovative Chiropractic, P.C. v Travelers Ins. Co., 2010 NY Slip Op 50994(U) (App. Term, 2nd, 11th and 13th Jud. Dists. 2010), where the same Appellate Term held that
[D]efendant also submitted, among other things, an affidavit from its peer review chiropractor and a peer review report, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue
“Factual basis.”[4]
Assuming that I agree with the Appellate Term’s reasoning as to assignors, namely, “With respect to the medical records of other providers who had rendered treatment to this assignor, it is noted the plaintiff stands in the shoes of its assignor and acquires no greater rights than its assignor,” doesn’t it matter when the plaintiff’s service were provided in relation to the dates of service for the other providers. What if the provider performed the services on 1/1/10 and took an assignment on that date, but defendant wanted to have its expert testify as to records from services provided on 1/15/10?
I haven’t pulled the record on this one yet, but I’m willing to bet that no foundation was provided as to where the records came from and the dates that the records were received. As I’ve said before, if a peer review doctor (let alone a re-peer) receives records to review, the records come from a vendor, who receives the records from the defendant, who receives it from…and so on and so forth. It is all but certain that no explanation was provided.
Next, steadily moving backwards, the Appellate Term tells us that, if an MRI facility receives a verification request as to the referring doctors’ records, it has to tell the insurance company what it already knows. But, it isn’t all bad. If that’s the case, a simple form letter saying, “We are an MRI facility, we don’t have those records,” should be enough to make the insurance company take some other, affirmative, action. It’s wrong, and silly, but like I said, it’s not all bad.
It doesn’t stop there. Well, Urban Radiology does, but the Appellatetermageddon doesn’t: Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 50990(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010).
Plaintiff argues, among other things, that defendant’s motion should have been denied because defendant failed to establish that its denial of claim forms constituted evidence in admissible form pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518. This argument is unavailing. Defendant did not offer the denial of claim forms to establish the truth of the matters asserted therein, such as the lack of medical necessity of the services rendered, but rather to show that such denials were sent, and that, therefore, the claims were denied. As the denial of claim forms were not offered for a hearsay purpose, they did not need to qualify as business records (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]).Plaintiff raises the same argument regarding the notice of cancellation offered by defendant with respect to the insurance policy issued to Manuel Espinal which defendant had canceled. Again, since this document was not being offered for a hearsay purpose, it did not need to qualify as a business record. As plaintiff’s remaining contentions are meritless, the order is affirmed.
Can this be reconciled with Cirucci?[5] Can it be reconciled with Zuppa? Can an insurer show that it denied the correct claim, if it doesn’t offer the denial for its truthiness? Sure, some of you will say, “well, if the plaintiff established it’s prima facie case, then most of the stuff that would be subject to a hearsay[6] objection will already be in evidence through plaintiff’s bills.” I’ll answer : (1) all but two or three of you thought about that, and well, you’re ugly and nobody loves you; (2) see (1); and (3), I guarantee you that the lower courts would issue a ruling, misguided as it is, that the plaintiff failed to establish its prima facie case and that the defendant provided a foundation for its denial, or, that defendant established its prima facie case, but plaintiff didn’t.[7]
Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 2010 NY Slip Op 50991(U) (App. Term, 2nd, 11th &13th Jud. Dists. 2010) doesn’t add anything, other than some talk about EUOs. There were a few other decisions about stipulations and dismissals, and their consequences, but that stuff is old news.[8] And there was some 3212(f) stuff, that I’m not even going to bother putting in a footnote.
On a final, and positive note, the Appellate Term gave us Excel Imaging, P.C. v MVAIC, 2010 NY Slip Op 50998(U) (App. Term, 2nd, 11th &13th Jud. Dists. 2010) (“[P]laintiff contends that the order, insofar as appealed from, should be affirmed, as triable issues exist regarding, among other things, whether the denial of claim form had been issued in duplicate…Upon a review of the record, we agree with the Civil Court’s determiFnation that MVAIC is not entitled to summary judgment.”)
Continuing on that positive note, it appears as if State Farm, through its counsel, changed it position on what constitutes a claim. LMwho?
Sometimes I wonder why I don’t write substantive posts. This is why.
If anyone has more cases to add or some insight, please comment. I had to rush this through because in an hour or so I have to go watch my daughter’s ballet recital. That leaves me almost no time to drink in preparation.
[1] Rosato v 2550 Corp., 70 AD3d 803 (App. Div., 2nd, 2010) h/t to Damin Toell for sending the case my way
[2] Caton v. Doug Urban Const. Co., 493 N.Y.S.2d 453 (Ct. App. 1985)
[3] The judicial equivalent of the Bistromathic Drive?
[4] Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 2010 NY Slip Op 50997(U) (App. Term, 2nd, 11th &13th Jud. Dists. 2010) said the same thing.
[5] General Acc. Ins. Group v. Cirucci, 414 N.Y.S.2d 512 (Ct. App. 1979).
[6] See generally, Hochhauser v Electric Ins. Co., 46 AD3d 174 (App. Div., 2nd, 2007)
[7] It’s all garbage because, despite what the Appellate Term says, the plaintiff does not need to provide a foundation for the facts contained in the bill; it’s the defense that matters. See generally, Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 (Ct. App. 2008).
[8] Boris Kleyman, P.C. v General Cas. Ins. Co., 2010 NY Slip Op 50992(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010); Midisland Med., PLLC v NY Cent. Mut. Ins. Co., 2010 NY Slip Op 50993(U)) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010); Ema Acupuncture, P.C. v Lumbermens Mut. Cas. Co., 2010 NY Slip Op 50995(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010). Roman Chiropractic, P.C. v Lumbermens Mut. Cas. Co., 2010 NY Slip Op 51000(U)) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010) was the only one that was remotely interesting. In that case, had the plaintiff opposed the original 3216 motion and lost, or waited until it got a determination on the motion, before filing the new lawsuit, it might have benefited from an SOL toll via the (relatively) amended CPLR 205. I probably should have put this in the post and note this footnote.
Hold the phone, did I read this correctly…
So the Term, 2nd, 11th and 13th, granted summary judgment on the basis of the expert’s allegations regarding 3rd party medical records that the Defendant withheld from both the Court and from discovery? They didn’t annex the 3rd party medical records to their aff, their motion, and also failed to provide them in discovery? Please say this isn’t the case.
“Assuming the secret records we will not show the court and opposing counsel are correct, Defendant is entitled to summary judgment.” And an affidavit dependant on an unproven condition is now sufficient on summary judgment?
In my view, we have created our own monster with this Term by failing to seek leave to appeal countless decisions we should have. If you don’t care about hogwash like due process, there is no reason to comport your anti provider decisions with the law assuming the provider will always fail to appeal.
And each successive opinion takes them a little step further away from the rule of law.
Sun,
The Plaintiff’s bar is its own worse enemy.
Dan Medical and Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co. cannot be reconciled. These two cases highlight the fact that this Term crafts divergent rules of evidence, the harsher set is applicable to medical providers, the more permissive set is applicable to insurance corporations. Dislike procedural due process much Term?
I have moved for leave to appeal a number of decisions of the Term. I think 11 of them. They denied everyone. I have then gone to the App Div. — nine times. They will not take a no fault case unless they have to. [Can you blame them]
“One step further from the rule of law …” C’mon Sun. There is no rule of law.
There is one set rules for the corporations — especially insurance companies — and another set for everyone else.
I had a Judge in Queens Supreme refuse to issue a written decision because he did not want to be appealed. He has done this to another party in the case. I finally gave 5 days notice of an Article 78 against the Justices of the Supreme Court County of Queens. [That's the way you do it] A well intentioned, excellent, administrative Judge settled the issue. Funny thing is the Judge that refused to issue the decision strung me along for months.
I am in the process of bringing the issues discussed and other issues –many unbelievable issues — to the attention of the Presiding Judge of the Court of Appeals. There will be more then complaints. There will be evidence. I am going to do some — some — talking about what I have witnessed in various places while working in various places. It will be corroborated.
I can gaurantee this. A lot of insurance company money has flowed into this State. From the appointment of the Superintendent, etc., etc.,
You know my dad was an immigrant with two years of education. He broke his back so that my sisters and I could become professionals instead of manual labor grunts [He retired rich at around 46 so go figure] On the day I graduated from law school my sister graduated from medical school. My father was there for both. On that day he cried.
They are soiling the tears of my father. I will fight it until the end because this license is worth nothing if there is no law.
Are you actually nuts or just acting the part really well?
I don’t know. The content is true but I guess I get carried away sometimes. The whole soiling part goes too far. Why do I do that? It sounds … well it sounds crazy.
I suppose I should tone it down. But what the hey. Look at the quality of the audience. Everyone could hate me or think I am crazy but the combined weight of the thinkers thoughts is lighter then a quark — and the combined intelligence is also sub atomic. So what the #%&@ [Heck]
So in sum you really have to be crazy to act this crazy. I know of one date that I have lost because of my posts. She said I was crazy. Sun loves me though and I still have onlinebootycall.com
Oh and I appreciate the concern. And I didn’t mean to insult you when I called you dumb and meaningless.
P.S. And by the way this site and another I shall not promote [J.T.s] has exploded with renewed interest upon my return to the mix.
I don’t think all courts have been subject to influence as much as this particular Term, though I’m just as troubled as you regarding the escalating combination of govermental and corporate power. That well could be the case in the near future.
The carrier trolls have it in for the Zuppa.
Most counsel are wimps in real life. My money is on the Zuppa. And make no mistake, Zuppa has some good points. He just needs to let the facts do more of the talking and quell his passion during the writing process.
Crazy. Nuts. That’s what I am told when I plan to sue law firms or do sue law firms. You can’t do that says the Plaintiff’s bar. It’s uncouth. Ray you’re uncouth and crazy. We want to distance ourselves from you.
You wimps. I just read the GEICO Class Action.
Folks when are you going to understand that the industry flushed with the purchase of the best government that money could buy is out to destroy you. Hah it was easy to run from your clients but now their hunting you.
I love it.
Now I am going to sue law firms. I know how to plead now. I tried so many cases and worked so many wiretaps I missed the basics. But I am good with that now.
And when they say how uncouth. How crazy. I will say well look at what that White Shoe No Fault Law Firm just did.
I meant RICO. I was thinking a class action. Sued for representing your client.
Sun there you go. You want Gotti you get his attorney. You want to deny claims. Sue the provider’s attorney.
Of course its in the Eastern District. A bunch of angry homeowners protesting outside Allstate’s Offices because Allstate dropped their home insurance would qualify as a RICO Enterprise in the Eastern DistrictCo.
Fascist Nation.
Man, I hate to agree with you Ray about the going after plaintiff law firms. As concerned said: “Are you actually nuts or just acting the part really well?”
But, I think to pursue an action against a law firm with the actual intent of putting them out of business, is not cool. This complaint is just vicious.
I see the suit, as against the firm, as being very close to a SLAPP suit.
Absolutely. In New York that does not become ripe until after you beat the actual suit. Its basically a mal pros suit. It should be included, amongst others, in a counter claim and third party action.
Most importantly it should be included in various forms as affirmative defenses. Do your best to intertwine the motives of the Plaintiff and others associated with the Plaintiff [who?] — I don’t want to be uncouth so I won’t say — with the Plaintiff’s claims.
It is efficient. Let’s get all the discovery done at once. The Federal Courts are supposed to love efficiency. Just write a few hundred letters.
And so the hunters become the hunter.
I hear the victim’s top guy — not mentioned — is real tough guy. He even wanted a piece of me at one point, but was warned to stay away because I and another individual who I run with were quote — “crazy.” Let’s see how tough …
Haaahhhhaaaahhhaaahhhh.
It’s like democrats and republicans. Republicans are evil. Democrats are cut throat and cut and run — so they give you evil.
Insurance companies and many of their attorneys — I love the ones that complain your papers are late while their usual custom is to walk in their papers on the return date — are evil. The providers and their counsel are cut throat and cut and run little people that only care about themselves and screwing the other guy. The result is evil.
I hope they do more of this. I love the upheaval. I love the anarchy. I love the horror. I shower in hate and love its smell.
here’s the thing: most of the attorneys–both Plaintiff and Defendant–are men and women just trying to get through the day. 99% of their actions are guided by the path of least resistance. They give you a hard time because their employer would give him or her a hard time if they made it easy.
Even partners at larger firms arent much different. They know that, if they dont fight and get results, then their clients will call up another firm that will do whatever the client asks.
I can see the effect the GEICO suit is having on some of my pending RICO cases. New terms are being thrown into settlement discussions.
I love it. This is it. Phone booth litigation. Like when I was a kid. Throw the guy into the phone booth and start swinging. No one misses. The person who hits harder and faster and has the greatest tolerance for pain is the one that walks out.
Sooner or later these go to juries if you really want to fight. Juries get ripped off by insurance companies. Fucking bar room brawl with the lights shot out.
Wake up in the morning if you slept at all and puke up your cheerios on the day you open. That’s how I see most of these insurance company attorneys trying a case. No 25k policy for you said the Soup Nazi.
I love it. Let’s get rid of the b.s. courtesy.
Oh happy Father’s Day to all … haaaaaaahhhhh
I made my own comments about this case on my site, http://www.newyorknofaultadvisor.com. I can see the arguments pro and con for this decision, but I am a ‘big picture’ guy. Taken completely out of context, I suppose one could say that giving opinions based on medical records not in evidence is a hearsay violation. But taking anything out of context distorts its meaning. In No-Fault litigation, the defense expert gives an opinion in a scenario where the burden of proof is on the defendant. If the expert is giving his opinion based on the patient’s medical records, well, his opinion is only as good as the records. And he is subject to cross-examination. If the records aren’t complete, or are partly illegible, or are ambiguous, that gives the plaintiff’s attorney a lot of ammunition on cross. Where’s the unfairness? What does seem unfair to me is to prevent the expert from testifying at all if the records can’t get into evidence (and getting them into evidence is a tremendous burden on the defense, for reasons too long to detail here). No fault trials are almost always in front of a judge with no jury. The judge knows the appropriate weight to give to testimony. So what’s so bad about letting the judge hear the testimony and letting the judge make a decision based on hearing what both sides have to say?
Larry,
Is there a $25.00 fee to access your blog?
No. The blog is free. The answers you have to pay for, but they are only for “informational purposes.” The seizure you have from watching the introductory video is free as well.
Do I get a refund if the information is wrong? Also, I wish Larry would explain whether he warrants the accuracy, validity and reliability of his answers. My fear is that I may end up with a large award against me based upon a position I would not have taken in court or arbitration but for an answer Larry gave me. Will Larry warrant his advice against adverse decisions, including the $25.00 fee and the adverse award? This is critical before I utilize such a legal research service.
You get what you pay for. For $25, you dont get much.
I agree. Larry should up his rates to $1,000,000.05 per question.
The “$0.05″ represents my actual cost, I suppose.
Larry is revolutionizing the practice of law. Cut rate and cut throat.
Larry your analysis really downplayed the decision. The Court’s are allowing everything to get in under the mantra it is not being offered for the truth of the matter asserted.
How hard is to come to court and say we received this from the plaintiff and rely on such documents in the ordinary course of business etc etc.
Now writings no one has seen get considered in reaching the expert’s opinion. Expert my ass. I crossed Aziz who testified for a major carrier about the conviction of his purported facility. The irony didn’t faze the court too much.
And the whole denial not being offered for the truth of the matter asserted is just biased B.S.
You don’t realize how many emails I get every day asking for $1,000 worth of advice/opinions for free. I don’t mind answering people’s complicated no-fault questions but for the luvva Pete, if I gave out such opinions face to face I would expect the questioner to at least buy me coffee at Starbucks. Obviously $25 doesn’t represent the value of the opinion — it’s just a small cover charge for taking up my time with a ‘bar exam question.’ Of course you rely on it at your own risk, but that applies to both free advice and advice you pay $1,000 for.
Can Urban Radiology be reconciled with Matter of Fortunato v Murray, 2010 NY Slip Op 03122 (App. Div., 2nd, 2010).
I’m not so sure that Larry can disclaim liability with respect to the rendition of professional advice, but I can’t blame him for trying.
I’m looking into this Geico complaint, no allegations that billed for services were never rendered. No allegations that the services where not performed by licensed professionals. No allegations that these insured patients were not properly medically treated.
Therefore, Geico is inexorably seeking a windfall– to receive back money that satisfied its own contractual duties toward its own insureds.
These are strict technical Mallela allegations– that somehow date back to 2001 before said technical defense existed– yet they are going to bring in the law firm?
Looking at the lawfirm specific allegations, there is smoke and mirrors going on. They discuss that mutiple actions are brought on single bills. At first that troubled me. It is not until the very end of the section that it addresses whether the firm took double recoveries resulting from these actions. And when they do so, it is very sheepish, discussed in terms of alleged motivation rather than facts, see here: “to secure double-or triple pyament on duplicated claims, where possible.” (p. 27.)
Well, with all this detailed information concerning double lawsuits, they can’t cite one instance where a double recovery was actually taken?
If they have no double recovery, they only have technical positions.
Further, none of the allegations concerning attorney knowledge of the Mallela “scheme” are supported. Nothing is cited. I’m going to gather that this is all speculation on Rivkin’s part.
Very dangerous game Rivkin and Geico are playing here.
So let me get the ball rolling on merely one point.
For one, I don’t think Rivkin has considered that a simply statistical analysis can, in my opinion, estabish that Geico’s counsel have been playing a game of global discovery gamesmanship, flauting the rules of procedure in systematic fashion across all claims as a general protocol, designed to defraud opposing counsel, knowingly delay and deprive judgment regarding valid claims in litigation, and, in general, make a mockery of the court’s authority.
A simple statistical analysis, in my opinion, would bear this out and most likely lead to numerous EBT’s of Geico counsel in support of an injunction and sanctions.
And everything can be handled in a manner that would keep it away from the EDNY.
I’m just thinking here….
Give me a client.
We think too much and act too little against this corporate fascist government. Everybody is worried about their turf. Like one of the last victim of the Nazis stated in a famous quote. “First they came for the Jews and I did nothing because I was not Jewish. Then they came for the gypsies but I did not care because I was not a gypsy. Then the communists but that was not me so I did nothing. And the Pacifists but I was not one so I did nothing. When they came for me there was no one left but NAZI’s.”
Zuppa’s Note: My father’s father — my Grand Father — was put in a NAZI work camp for being a communist. He survived because he was a Zuppa. Most did not. He died in his late 70s with a hairline that started slightly above his eyebrows. What happened to me.
VOIR DIRE:
JV: Did you read the peer report and underlying medical records?
Dr: Yes.
JV: When you read them, did you accept the staements made therein as true, including the tests and test results?
Dr: Yes
JV: Do you intend to testify as if the statements made in those records are true?
Dr: Yes.
What else can the doctor say? If the doctor says “No, I assume they are true”, then there are no facts in evidence and we all know a trial cannot proceed on a hypothetical only. once the answer is yes, as it must be, then Urban is inapplicable and Wagman & Hambsch guide and the documents are hearsay. Some judges agree and some do not, but it seems to me undeniable if you are intellectually and evidentially honest.
If I ever switched over to the plaintiff’s no-fault bar…