Thursday, December 16, 2010

How do you spell "Pyrrhic victory"?

A new post. It's only been like a year and a half. Anyway, there's a new Appellate Division case you should read.

Matter of Carothers v GEICO Indem. Co., __ A.D. 3d, __, 2010 NY Slip Op 09256 (2d Dep't, 2010).

So Carothers did not get their bills into evidence because the sole witness at trial worked for a third-party billing company, and said billing company did not create the bills. Instead, the medical office would create the bills, the billing company would access them online, print them out, and mail them. The Appellate Division now affirms the holding of the Appellate Term that this is insufficient to establish the admissibility of the bills.

This is probably the correct outcome.

BUT...

The Appellate Division now holds (and this ain't dicta, this is essential to the holding) that "although a proper foundation can be established by a recipient of records who does not have personal knowledge of the maker's business practices and procedures, there must still be a showing that the recipient either incorporated the records into its own records or relied upon the records in its day-to-day operations." (Emphasis mine.)

Thus, where a third-party biller witness lacks personal knowledge of the medical provider's procedures, the biller can still get the bills into evidence so long as:
1) the information received from the medical office was incorporated in the billing company's records, OR
2) the information received from the medical office is used in the billing company's day-to-day operations.

In the standard scenario of a third-party biller witness (or affiant, for that matter) who creates the bills based on information received from the medical office, the biller should now be able to get the bills into evidence even if the biller has no personal knowledge of the medical office's procedures, so long as at least one of the elements of Carothers is satisfied.

This just so happens to overrule every Appellate Term decision that held that a third-party biller cannot get the bills into evidence solely on the basis that the biller lacks personal knowledge of the procedures of the medical office. See, e.g.,, Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co., 26 Misc 3d 132(A) (App. Term, 2d Dep't, 2010).

Merry Christmas.

2 comments:

Anonymous said...

The ridiculous evidentiary hoops that the Appellate Term has invented are finally debunked by the Appellate Division. The Business record exemption has always been about commercial reality, that is, that employees leave their jobs, they are fungible, and personal knowledge goes to weight given to the bills not admissability.

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