Wednesday, November 29, 2006
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.
Monday, November 20, 2006
The following is an excerpt from the Opinion, and presents the basic issues involved:
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)?
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?
Thursday, November 16, 2006
Friday, November 10, 2006
"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:
- The licensed physical therapist has practiced physical therapy on a full time basis equivalent to not less than three years.
- 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."
Wednesday, November 08, 2006
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.
Hon. Kevin J. Kerrigan
Hon. Howard G. Lane
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.
Tuesday, November 07, 2006
Friday, November 03, 2006
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.
Wednesday, November 01, 2006
Re: the title of this entry: kudos to anyone who can come up with the most appropriate Wonder Twins power.
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.