'Blawg' sounds somewhat onomatopoeic

The reader is directed to the search engines at Blawg.com and Justia Blawg Search, both of which have been kind (smart? gullible?) enough to list us.

I hope everyone had a nice Thanksgiving, but sadly it's time to hunker down and deal with a month's worth of rush items until things quiet down once again at the end of December. Of course, we'll continue to provide all relevant updates, but there has not been much to report as of late.

Updates on the ongoing litigation in Matter of Carothers v Insurance Cos. Represented by Bruno Gerbino & Soriano LLP & Freiberg & Peck LLP will be forthcoming as appropriate.

Yeah, well, you know, that's just, like, your opinion, man.

The reader is directed to an Opinion Letter from the Office of the General Counsel to the NYS Insurance Department, entitled "Electronic Record Retention of No-Fault Insurance Claim Forms," and dated October 25, 2006.

The following is an excerpt from the Opinion, and presents the basic issues involved:

Questions Presented:

1. Do the New York State Electronic Signatures and Records Act ("ESRA") and the federal Electronic Signatures in Global and National Commerce Act (E-Sign) obligate an insurer to accept electronic records and signatures in connection with No-Fault insurance claim forms?

2. May a digitally reproduced NF-AOB serve as an original document for purposes of a verification request by an insurer under Section 65-3.11(c) of N.Y. Comp. Codes R. & Regs. tit. 11, Part 65 (Regulation 68)?

Conclusions:

1. No. Neither E-Sign nor ESRA obligates an insurer to accept electronic records or signatures.

2. Yes, provided that it is accurate and accessible as required under Section 7001(d)(1) of E-Sign and the insurer consents to the use of an electronic record as an original document.

The Opinion is rather thorough, so all interested are recommended to read it in full. Note that the question is presented on behalf of "MRI Corporation X" and that particular entity uses digital signatures of its doctors to 'sign' various documents. "MRI Corporation X" basically appears to be asking for permission to use scanned-in signatures of its doctors, a practice it is already admittedly employing. One can only wonder who "MRI Corporation X" is.

On what is surely an entirely unrelated matter, here is an update for all those interested regarding Andrew Carothers, M.D., P.C. Please note that the plaintiff in Matter of Carothers v Insurance Cos. Represented by Bruno Gerbino & Soriano LLP & Freiberg & Peck LLP, 2006 NY Slip Op 26372 (Civ. Ct., Richmond Cty., 2006) recently brought a motion, by Order to Show Cause, described therein as one to renew and reargue said decision. Prior to the return date (this past Friday, November 17, 2006 at 2:30 PM), however, plaintiff withdrew the motion. Both a Notice of Appeal and a purported Amended Notice of Appeal are currently pending. No stay has been granted either by the Appellate Term or the Civil Court. Under the terms of the subject Order, today is the final day by which Dr. Carothers is to be produced for an EBT. Anyone taking bets?

Far to Go

Sorry for the lack of recent updates, but the undersigned has been swamped this week, and there haven't been any developments of note. The Appellate Term, 2d Department, for example, hasn't published any decisions since October 25. Wherefore art thou, Golia? (And Pesce, and McCabe, and Weston Patterson, and Belen, and Rudolph, and...)

Direct Access to Physical Therapy

Currently, physical therapy treatment (as rendered by a licensed physical therapist) must be provided pursuant to a referral by a licensed physician, dentist, podiatrist or nurse practitioner. See Education Law § 6731(c). Effective November 23, 2006, however, § 6731(c) is being amended, and subsection (d) is being added, to read as follows, allowing patients some limited direct access to P.T.:

"c. Such treatment shall be rendered pursuant to a referral which may be directive as to treatment by a licensed physician, dentist, podiatrist or nurse practitioner and in accordance with their diagnosis, except as provided in subdivision d of this section.

d. Such treatment may be rendered by a licensed physical therapist for ten visits or thirty days, whichever shall occur first, without a referral from a physician, dentist, podiatrist or nurse practitioner provided that:

1. The licensed physical therapist has practiced physical therapy on a full time basis equivalent to not less than three years.


2. Each physical therapist licensed pursuant to this article shall provide written notice to each patient receiving treatment absent a referral from a physician, dentist, podiatrist or nurse practitioner that physical therapy may not be covered by the patient's health care plan or insurer without such a referral and that such treatment may be a covered expense if rendered pursuant to a referral. The physical therapist shall keep on file with the patient's records a form attesting to the patient's notice of such advice. Such form shall be in duplicate, with one copy to be retained by the patient, signed and dated by both the physical therapist and the patient in such form as prescribed pursuant to regulations promulgated by the commissioner."

However, and most importantly for readers of this blog, it should be noted that the Insurance Law is being modified in such a way as to make P.T. rendered without a referral ineligible for no-fault reimbursement. § 5102(a)(1)(ii) currently defines "basic economic loss" (that which is reimbursable under no-fault) as, inter alia, necessary expenses incurred for "psychiatric, physical and occupational therapy and rehabilitation." Effective November 23, 2006 (the same date as the above-mentioned amendment to the Education Law), however, § 5102(a)(1)(ii) is amended to refer to necessary expenses incurred for "psychiatric, physical therapy (provided that treatment is rendered pursuant to a referral) and occupational therapy and rehabilitation." The end result is that, for no-fault reimbursement purposes, P.T. will still require a referral. Providers, patients, claims examiners, and attorneys should all be aware of these changes and protect their interests accordingly.

You Keep Me Hangin' On

Following up with yesterday's post, it appears, from vote tallies released in the media, that the following Civil and District Court judges have been elected to the Supreme Courts in the following counties:

Civil/Kings:
Hon. Karen B. Rothenberg
Hon. Jack M. Battaglia

This leaves the role of Supervising Judge of Civil/Kings open, as Judge Rothenberg currently holds that position. Note also that Hon. Delores J. Thomas appears to have not been elected, and two Republicans actually won seats on the Court.

Civil/Queens:
Hon. Kevin J. Kerrigan
Hon. Howard G. Lane

District/Nassau:
Hon. Joel Asarch
Hon. Randy Sue Marber

In District/Nassau, Hon. Valerie J. Bullard and Hon. Scott Fairgrieve have been re-elected to the seats they currently hold.

If I have missed the election results pertaining to any other judges that commonly handle no-fault matters, please let me know.

The Supremes

Today, of course, is Election Day. Please be advised that various New York City Civil Court and County District Court judges from Long Island are running for the Supreme Court. Please be further advised that, if elected, they will rarely handle any further no-fault matters. One is tempted to suggest that you vote accordingly... ;)

The Two Ships Peerless

Although not a no-fault matter, the decision in Egon J. Salmon, Inc. v Tamarin, 2006 NY Slip Op 26443 (Civ. Ct., Richmond Cty., 2006) may be of interest to NYC no-fault practitioners. In a show of jurisprudential fortitude that would surely overcome a lesser jurist, Hon. Philip S. Straniere has analyzed New York City Civil Court Act § 1815. It should be pointed out that there are actually two entirely different sections numbered 1815 in the NYCCCA. Lexis, for example, has a footnote pointing out this fact if you attempt to retrieve it. It should also be noted that this is the least of the absurdities involved with that section.

Long story short, Judge Straniere found the section unconstitutional.

And, in a no-fault-related matter, this is not the first time that Judge Straniere has held a section of the NYCCCA to be unconstitutional. See Richmond Pain Mgt. v State Farm Mut. Auto. Ins. Co., 2004 NY Slip Op 50288(U) (Civ. Ct., Richmond Cty., 2004). Although causality is difficult to determine (just ask an engineer preparing a low-impact study for a no-fault case), Article 4 of the NYCCCA was eventually amended by the Legislature. Perhaps Judge Straniere's opinion in Egon J. Salmon, Inc. v Tamarin will remind the Legislature that § 1815 (one of them, anyway) is also ripe for amendment.

Form of a...

Many visitors to this blog come here in search of the no-fault forms promulgated by the Insurance Department. To that end, please refer to this PDF file at the Ins. Dep't's website. It contains the following (titles are provided for the more commonly-used ones): NF-1A, NF-1B, NF-2 (Application for Benefits), NF-3 (Verification of Treatment), NF-4 (Verification of Hospital Treatment), NF-5 (Hospital Facility Form), NF-6 (Employer Wage Verification), NF-7 (Verification of Self-Employment), NF-8, NF-9, NF-10 (Denial of Claim Form), NF-11, NF-12, NF-13, and NF-AOB (Assignment of Benefits). For litigation purposes, at least, the typical no-fault medical claim will require an NF-2, NF-3 (or NF-4/5 if a hospital rendered treatment), NF-10 (if the claim was denied), and an NF-AOB. Beware of providers who modify the NF-3 and NF-AOB forms.

Re: the title of this entry: kudos to anyone who can come up with the most appropriate Wonder Twins power.

Chewing Away at the Basic Fabric of Civilization

As usual, the late Long Island-native author William Gaddis puts it all in perspective. In A Frolic of His Own, a 1994 novel consisting of deposition transcripts, court opinions, etc., the main protagonist, Oscar Crease, provides us with the following tirade. His words are directed at an adjuster from his insurance carrier and describe his frustration with his carrier's professed immunity from liability for non-economic damages after, somehow, Oscar made his own car drive over himself. I'll leave that mystery, and many more treasures, for the adventurous among us.

The protection of the No Fault statutes do you think I can't see through that? They're not protecting me they're protecting you insurance people with this No Fault idea it's not even an idea, it's a jerrybuilt evasion of reality of course someone's at fault. Someone's always at fault. It's all a cheap dodge chewing away at the basic fabric of civilization to replace it with a criminal mind's utopia where no one's responsible for the consequences of his actions, isn't that what the social contract is all about?
* * *
I see all around us the criminal mind at large appropriating, literally stealing the fruits of the creative mind and the dedicated labours of others without even blinking, isn't that what's at the heart of this cancerous No Fault epidemic? this license for delinquency? Society created the criminal, society's responsible and so no one's responsible, isn't that the size of it? demolishing the pillar civilization rests upon, each individual's responsibility for the consequences of his own actions? and the natural law which frames the concept of negligence, let alone deliberate transgression goes out the window and the Constitution with it, are you aware of that? Are you aware that you're toying with one of the first laws of physical nature itself?
- pgs. 222-3, New York: Scribner (trade edition, 1995) (all spelling, punctuation, capitalization, etc. as in the original).

So, dear readers, fellow attorneys, insurance company representatives, judicial staffers, medical providers and management companies, factoring (and 'secured loan') company employees, and others: have fun today as you toy with one of the first laws of physical nature itself. And, please, be careful.