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The whole splatterwalk thing less than the happy-go-lucky sort of post you all have come to know and love from nofaultparadise.  To make up for it, I’m offering a roundup of what is going on in the world in the blogosphere and lolz.

The Supreme Court told us that kids can’t go to jail indefinitely, and that everyone else can be held indefinitely without a trial.  A detective and a an ex-wife conspired to falsely accuse the ex-husband of child molestation.  The prosecution knew, but didn’t tell anyone.  First the dog, then the innocent 7-year-old.  Facebook is for quitters.  One day you will see my picture here.  Best way to affect student loan practices:  mass suicide.  When you are stressed out about your hard day trying no-fault cases or arguing no-fault motions, read Triage.

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I’ll admit, there has been a lull.  But it’s not my fault (it never is).  Nothing interesting has been published and everything else is aggravating to write about.

A. Veder, M.D., P.C. v Countrywide Ins. Co., 2010 NY Slip Op 20180 (Civ Ct City NY, Bronx County, 2010)

Does the Commercial Small Claims Part have subject matter jurisdiction to try a No-Fault case when a specific No-Fault Part exists within NYC Civil Court? This Court finds that it does not. Thus, under NY Civil Court Act § 1805-A, the above-captioned case is transferred to the No-Fault Part for proper adjudication.

Devonshire Surgical Facility v American Tr. Ins. Co., 2010 NY Slip Op 50867(U) (App. Term, 1st, 2010)

Plaintiffs established their entitlement to partial summary judgment on the issue of liability on the first cause of action, which seeks recovery of overdue assigned first-party no-fault benefits in the principal amount of $3,050.74 (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Additionally, plaintiff Carnegie Hill Orthopedic Services, P.C., (Carnegie) established its prima facie entitlement to judgment as a matter of law on the second and third causes of action, which seek recovery of overdue assigned first-party no-fault benefits in the principal sum of $9,118.76. Defendant’s submissions before Civil Court established its receipt of the respective claims (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [2007]; Devonshire Surgical Facility v GEICO, 16 Misc 3d 130[A], 2007 NY Slip Op 51308[U][2007]), and defendant did not dispute that $9,118.76 remained overdue on the claims of Carnegie upon which the second and third causes of action are based. In opposition, defendant, which failed to timely deny any of the claims (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; New York & Presbyt. Hosp. v Progressive Cas. Ins., 5 AD3d 568 [2004]) and was precluded under a so-ordered stipulation from offering certain evidence at trial based on its failure to respond to plaintiffs’ interrogatories (see Wilson v Galicia Contr. & [*2]Restoration Corp., 10 NY3d 828, 830 [2008]), failed to raise any triable issue.

Alev Med. Supply, Inc. v Progressive Ins. Co., 2010 NY Slip Op 50813(U) (Nassau Dist Ct, First Dist)

Beal-Medea Prods., Inc. v GEICO Gen. Ins. Co., 2010 NY Slip Op 50800(U) (Civ Ct City NY, Kings County)

It’s a peer review case.  More specifically, a re-peer case.  The only things stipulated to in this case was that the bills were timely mailed and the claims timely denied.

Applying this standard to the case at hand, the Court will permit the substitute peer doctor to testify and limit his testimony to the basis for denial as set forth in the original peer review. Plaintiff objected to Dr. Jacob’s testimony based upon hearsay grounds. The Court of Appeals has [*4]held that an expert witness may testify that he or she relied upon specific, inadmissible out-of-court material to formulate an opinion provided: (1) it is of a kind accepted in the profession as reliable as a basis in forming a professional opinion and (2) there is evidence presented establishing the reliability of the out-of-court material referred to by the witness. See Wagman. Dr. Jacobs testified that the out-of-court documents he relied upon were professionally reliable, however he did not present evidence establishing the reliability of the out-of-court material. Therefore, Defendant failed to demonstrate either that the testimony did not rely on out-of-court documents for the truth of the matters stated herein, or that the documents were being relied upon for their truth but fell within an exception to the rule against hearsay. See Progressive Med., Inc. v Allstate Ins. Co., 2010 NY Slip Op 50219U (NY App. Term 2010). Accordingly, Dr. Jacobs’ testimony is stricken and the Court finds that Defendant did not establish a factual basis and medical rationale for its asserted lack of medical necessity.

The Court agrees that a substitute peer doctor’s testimony must be limited to the rationale in the original peer.  Most everyone agrees.  Assuming, for the sake of argument, that the court was correct in allowing the substitute doctor to testify about other doctors records without any foundation as to where they came from¹, e.g., how the documents made their way to the substitute doctor, how the doctor knows that they were not altered, etc., for the Court to be able to make the determination that the substitute is testifying within the confines of the original peer review, the original peer review must be in evidence.  The professional reliability exception does not cover peer reviews.  If the Court cannot determine whether the substitute id testifying within the four corners of the original peer review, the defendant cannot meet it’s burden.

No fault is a creature unto itself.  Defenses, and testimony are limited by it’s peculiarities, which makes sense.  The professional reliability exception doesn’t quite fit when the experts testimony is necessarily limited.  And in any event, the issue shouldn’t be what the substitute thinks of the records, it’s what the original peer thought that matters.

head over to JT’s blog for a different take.

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1.  In most cases, medical records will come from a provider to the insurer (but not always the billing provider initially); then they go to a third party (Crosslands, Ace, Ect), then to the peer review doctor, who in turn sends the peer back to the third party (sometimes it’s dictated and sent electronically to the third party, who then puts the doctors signature on it), and the third party sends the peer back to the insurer.  When a substitute testifies, the insurance company or the third party send the peer to the substitute to review, along with medical records, which may or may not be the ones that were originally sent to the insurer.  Short story, the medical records change many hands many times.  By the time the peer and the records get to court, there is no telling what has happened to them or the peer review.

Courts have a tendency to put a burden on plaintiff to establish the records aren’t reliable, which makes no sense.

Matter of Travelers Indem. Co. v United Diagnostic Imaging, P.C., 2010 NY Slip Op 03944 (App. Div., 2nd, 2010)

A court should only order disclosure to aid in arbitration pursuant to CPLR 3102(c) if “extraordinary circumstances” exist (De Sapio v Kohlmeyer, 35 NY2d 402, 406). Hence, that relief is “sparingly” granted (De Sapio v Kohlmeyer, 35 NY2d at 406; see Matter of Katz v State of N.Y. Dept. of Correctional Servs., 64 AD2d 900; Matter of Jamaica Hosp. v Vogel & Strunk, 57 AD2d 843).

The test for ordering disclosure to aid in arbitration is “necessity,” as opposed to “convenience” (Hendler & Murray v Lambert, 147 AD2d 442, 443 [internal quotation marks omitted]). Thus, court-ordered disclosure to aid in arbitration is justified only where that relief is “absolutely necessary for the protection of the rights of a party” to the arbitration (Hendler & Murray v Lambert, 147 AD2d at 443 [internal quotation marks omitted]). [*2]

Here, the petitioner already has evidence sufficient to establish a potential defense in the arbitration proceedings (cf. 11 NYCRR 65-1.1[d], 65-3.2[c], 65-3.5[b], [c], [e]). Furthermore, the petitioner can potentially obtain the requested disclosure in the context of those proceedings (see 11 NYCRR 65-4.5[o][2]; cf. Matter of Katz [Burkin], 3 AD2d 238, 238-239). Finally, the record provides no indication that if a disclosure directive is made during those proceedings, the requested disclosure will, at that point, be unavailable (cf. Bergen Shipping Co., Ltd. v Japan Marine Servs., Ltd., 386 F Supp 430, 435 n 8). Under the circumstances, the petitioner failed to demonstrate the existence of extraordinary circumstances justifying court-ordered disclosure to aid in those proceedings. Accordingly, the Supreme Court improvidently exercised its discretion in granting the petition.