Thursday, April 26, 2007

Hell: Experiencing Intermittent Flurries

Three highly important decisions were put out today by the Appellate Division, Second Department: A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 2007 NY Slip Op 03636 (App. Div., 2d Dep't, 2007); A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 2007 NY Slip Op 03635 (App. Div., 2d Dep't, 2007); and New York Univ. Hosp. Rusk Inst. v Government Employees Ins. Co., 2007 NY Slip Op 03671 (App. Div., 2d Dep't, 2007). These decisions reverse (both specifically and in practical terms) a host of Appellate Term, Second Department cases whereby it was held that a no-fault denial of claim form (NF-10) would be legally insufficient if it merely stated that said denial was based upon the results of a peer review or IME. That is, if a denial were based upon the results of a peer review or IME, the Appellate Term repeatedly held that a carrier had to issue a denial that either attached the peer/IME report or otherwise included the medical rationale of said report.

The Appellate Division's decision from today in A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. sets out the thrust of their reversal of the Appellate Term:

"To the extent the Appellate Term's order may be understood to require an insurer denying a claim for first-party no-fault benefits on the ground of lack of medical justification to include a medical rationale in its denial of claim form, we agree with the defendant that the court erred. 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 (see 11 NYCRR 65-3.8[b][4]). 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 (see NYS Form N-F 10; 11 NYCRR 65-3.4[c][11]), it would have so provided."

This is a seismic change with a level of force far beyond the Richter Scale in the realm of no-fault medical necessity litigation and arbitrations. It also solidifies a trend by the Appellate Division to pull back the reins on some of the more "creative" Appellate Term decisions.

I expect to see a legion of defense attorneys waving these decisions around in court tomorrow...

10 comments:

David M. Gottlieb, Esq. said...

boo

Anonymous said...

Finally! The amount of abusive and alleged fraudulent testing that insurers had to pay out in settlements over the past year is mind-boggling. This should stop the bleeding...for now.

David M. Gottlieb, Esq. said...

Finally! whine whine whine whine whine whine whine whine whine whine

Anonymous said...

Nice to see the Appellate Division correct a clearly flaud decsion. I dont know what some of the Plaintiff's attorney's in Queens will rely on know.

NF P said...

We will rely on dopes like you using words such as "flaud," "decsion," "attorney's" and "know."

Anonymous said...

***David M. Gottlieb, Esq. said...
Finally! whine whine whine whine whine whine whine whine whine whine***

Ha. We'll see what whining is when Baker, Barshay, Tsirelman (btw thanks for the LAc decision), Shapiro, Rutigliano, Finkelshteyn and Israel start calling us to settle all all the stuff they made AB Medical based Summary Judgment Motions on...

D. Barshay said...

Anonymous defense herb who can't spell, what's your name?

Anonymous said...

You're all gay!! No fault is gay!! Congrats to all of you!!

Anonymous said...

"D. Barshay said...
Anonymous defense herb who can't spell, what's your name?"

I'm Rick James B/@%$h!

ins d said...

D. Barshay, still trying to burn ants with your magnifying glass? Don't get the same feeling of smug satisfaction collecting no-fault bills do we now.