Dr. Butcher, M.D. (Medical Deviate)

So am I the only one who dressed up as a no-fault-related character for Halloween? Three guesses as to which doctor I am portraying as a zombie...

And, yes, Dr. Butcher, M.D. is a real movie title.

Will Wisdom Prevail?

Sources tell me that a decision in Fair Price v. Travelers should be expected early next year. What do you think the decision will be? You can let us know by clicking below or commenting to this post.

Do you think that Fair Price v. Travelers will be overturned? Yes No. Free polls from Pollhost.com

Marvelous Shlomo S. Hagler

The reader is directed to the October 13, 2006 edition of the New York Law Journal for an article entitled 'The Thicket of First-Party No-Fault Benefits Actions' by The Hon. Shlomo S. Hagler of the Civil Court, New York County. I recommend it highly.

Judge Hagler was also the author of the decision in Inwood Hill Med. v Allstate Ins. Co., 2004 NY Slip Op 50565(U) (Civ. Ct., New York Cty., 2004). I still give copies of the decision to new associates as a primer on no-fault.

In other news, Fair Price Medical Supply Corp., a/a/o Nivelo v Travelers is still in the briefing stage before the Appellate Division, Second Department. Respectfully, the Appellate Term decision in Fair Price Med. Supply Corp. v Travelers Indem. Co., 2005 NYSlipOp 25343 (App. Term, 2d Dep't, 2005) is a perhaps the most frustrating example of that Court overreaching in applying the preclusion rule. In short, the idea that no-fault requires a carrier to pay a claim where the very submission of such constitutes a Class E felonly (see Penal Law § 176.15, as the bill in Fair Price was $1,628.98) simply cannot be correct, and requiring carriers to seek restitution after the fact is, as dissenting Judge Joseph G. Golia points out, "[c]old comfort indeed." Moreover, services never rendered cannot have treated any injuries that were causally related to a covered incident, and thus preclusion cannot apply. Indeed, given that (the relevant portion of) no-fault only covers necessary medical expenses, unrendered services are not subject coverage. It would make no sense to hold that Central General v. Chubb allows a carrier to avoid preclusion where services are rendered but does not treat an injury causally related to a loss, but requires preclusion where no services are rendered at all - the latter has more fatal defects than the former in terms of coverage, not fewer. There simply is "no contractual relationship" with respect to unrendered services. Zappone v. Home Ins. Co., 55 N.Y.2d 131, 137 (1982).

The preclusion rule is designed to penalize carriers for stalling in their duty to pay or deny a claim within 30 days, but penalizing a carrier for failing to realize through psychic powers that a claim was false in its entirety serves no public policy. Indeed, it hurts the public by raising insurance premium rates and providing an incentive for criminal activity.

But I digress. Perhaps I will post a larger analysis of Fair Price once the time for oral argument comes closer.

More...than the simple words I try to say...

(With apologies for the title to Ortolani/Oliviero/Newell.)

Further punctuating yesterday's post, the Appellate Term, 2d Dep't posted an opinion today in SpineAmericare Med., P.C. v State Farm Mut. Auto. Ins. Co., 2006 NYSlipOp 52035(U) (App. Term, 2d Dep't, October 5, 2006). Therein, the Court held that "plaintiff's moving papers were insufficient to establish the mailing of the appended forms to defendant. Plaintiff's corporate officer did not state that he actually mailed the claims to the defendant nor did he describe his office's standard practice or procedure designed to ensure that items are properly addressed and mailed." Id., citing to New York & Presbyt. Hosp. v Allstate Ins. Co., 29 A.D.3d 547 (2d Dep't, 2006). Once again, there was no mention of an "ensured compliance with" requirement, although perhaps it was unnecessary to mention same, as there was no description of the practice or procedure, anyway.

More on Mailing

I've discovered that, on October 2, 2006, NYLJ published an article entitled 'Proper Proof of Mailing Under N.Y. No-Fault Law' by Mitchell S. Lustig and Jill Lakin Schatz. Although quite well-written, I think the authors missed the boat on the quiet death of the "ensured compliance with" requirement, as discussed in yesterday's post, although the authors do cite to and discuss Ava Acu. and Gribenko. I also think, respectfully, that the authors are out of their cotton-pickin' minds to suggest that the carriers obtain a USPS Certificate of Mailing for every NF-10. It's one thing for a carrier to do so for VTL § 313 policy cancellation, as the volume there is surely a tiny fraction of the number of NF-10s that get processed and mailed throughout New York on a daily basis. I think the Certificate of Mailing idea is so impractical as to be of no utility. Nevertheless, I certainly do appreciate the effort put into the article and the opportunity to hear differing opinions.

Dissed Miss1

On May 30, 2006, the Appellate Term, 2d Dep't, dismissed the plaintiff's appeal of the February 7, 2006 order in AVA Acupuncture P.C. v ELCO Admin. Servs. Co., 2006 NY Slip Op 50158(U) (Civ. Ct., Kings Cty., 2006). For whatever reason, on October 4, 2006 (and just published online today), the App. Term reiterated the previous dismissal.

It is perhaps a shame that Ava Acupuncture was untimely in their appeal. Judge Battaglia's February 7 order is quite interesting, and it tackles two recurring no-fault disputes: the level of proof required to create a presumption of the mailing of a no-fault denial of claim form (NF-10) by a carrier and the issue of the lack of a fee schedule for acupuncture performed by a licensed acupuncturist.

Click here to toggle viewing the rest of the post...

Taking them in order, the specific dispute on proof of mailing in Ava Acu. was whether a presumption of mailing could be created by the affidavit of one who, although having knowledge of the standard practice and procedure of mailing by an office, was not in a supervisory position with regard to same. The problematic App. Term case law, relied upon by the plaintiff in Ava Acu., was Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co., 2005 NY Slip Op 50254(U) (App. Term, 2d Dep't, 2005 and Gribenko v Allstate Ins. Co., 2005 NYSlipOp 52201(U) (App. Term, 2d Dep't, 2005).

The Court in Contemp. Med., in holding that the defendant carrier failed to prove the mailing of its denial, noted that the affidavit of the claims examiner "was conclusory and failed to specify either that it was the duty of the claims examiner to ensure compliance with said office procedures or that the claims examiner had actual knowledge that said procedures were complied with." Out of sympathy to the Court, I'll decline to criticize the use of a preposition to end a sentence. However, there is a bigger problem. Shortly after the sentence I've just quoted, the App. Term cited generally to Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679 (2d Dep't, 2001). The problem is, though, Residential Holding says nothing about proof of mail coming from a deponent whose position it is to ensure compliance with the relevant practices and procedures. The App. Div. formulated the rule as being that "[t]he presumption [of mailing] may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed." Id. at 680, citing to Tracy v. William Penn Life Ins. Co., 234 A.D.2d 745 (3d Dep't, 1996) and Pardo v. Central Coop. Ins. Co., 223 A.D.2d 832 (3d Dep't, 1996).

The App. Term seemingly compounded the error in Gribenko by noting, when holding that the plaintiff had failed to create a presumption of the mailing of its claim forms, "the affidavits [did not] state that it was the duty of the affiants to ensure compliance with said office procedures or that the affiants had actual knowledge that said office procedures were complied with." 2005 NYSlipOp 52201(U), citing to Contemp. Med.

Subsequent to Gribenko, the Appellate Division issued its decision in New York & Presbyt. Hosp. v. Allstate Ins. Co., which quoted Residential Holding directly and held that "[t]he presumption [of mailing] may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed." 29 A.D.3d 547 (2d Dep't, 2006). Since that time, the App. Term has, curiously and without explicitly mentioning it, dropped the "ensure compliance with" rule from Contemp. Med. and Gribenko. Interestingly, the last time that the App. Term cited to Contemp. Med. or Gribenko, they found simply that "[t]he affidavit submitted by defendant's no-fault specialist was sufficient to establish that defendant followed a standard office practice or procedure designed to ensure that denial of claim forms were properly addressed and mailed," and failed to address the "ensured compliance with" rule at all. A.M. Med. Servs., P.C. v New York Cent. Mut. Ins., 2006 NYSlipOp 51662(U) (App. Term, 2d Dep't, 2006).

In Ava Acu., Judge Battaglia eloquently described the "ensured compliance with" issue and proof of mailing in general, and ultimately (and understandably) concluded that such a requirement did, indeed, exist. Judge Battaglia also found the affidavit submitted by the defendant carrier to be conclusory, anyway, so presumably the same result would have been reached whether or not the requirement existed. So, too, on appeal, the App. Term could have avoided even tackling the issue by finding it to be insufficient under any standard. Nevertheless, it would have been nice to have the App. Term explicitly disavow Gribenko, as plaintiffs' attorneys still argue for it throughout the Civil Courts with some success. See, e.g., Judge George Silver's opinion in Y&J Intertrade v. Utica Mut. Ins. Co., 236 N.Y.L.J. 41 (Civ. Ct., Kings Cty., 2006).

As for the second interesting portion of the Ava Acu. decision, the issue of the lack of a fee schedule for acupuncture performed by an acupuncturist has been a troubling one for some time. This is especially true in Civil Court, Kings County in acupuncture cases where plaintiff's counsel is the Law Offices of Gary Tsirelman, attorneys for Ava Acu. In short, Mr. Tsirelman's clients, along with many other acupuncturists, would have it that licensed acupuncturists are allowed to charge a rather substantial amount per modality, usually somewhere in the neighborhood of $120. However, there is a fee schedule for acupuncture rendered by chiropractors and physicians, and the resultant fees, at the high end, are about $43. Unfortunately for the acupuncturists, the Insurance Department issued an opinion letter on October 6, 2004 in which they opined that "licensed acupuncturists do not have a right to reimbursement at the prevailing regional fee rate in effect" prior to the physician and chiro fee schedules being put into effect, and that "it would be consistent with the regulation for an insurer to limit the reimbursable fee for necessary services provided by a licensed acupuncturist to the rates established for doctors and chiropractors performing a similar service."

Although he avoided doing so in Ava Acu., Judge Battaglia later tackled this issue on the merits in Power Acupuncture P.C. v State Farm Mut. Auto. Ins. Co., 2006 NY Slip Op 50393(U) (Civ. Ct., Kings Cty., 2006). I'm not quite sure how he pulled it off, but he both acknowledged the October 6, 2004 opinion letter and concluded that it "was wrong" for State Farm to reduce the bills submitted to a lower "fee [that] was calculated according to the...Schedule for Medical Fees." Id. I'm still mystified by the Power Acu. decision, and especially in light of the fact that Ava Acu. had its appeal dismissed, I hope that State Farm chose to prosecute an appeal in that matter.

--
¹ The title of the post explained: it's a cheap pun, as Ava Acu. is owned by Valentina Anikeyeva. Actually, given that she is married to Andrey Anikeyev, I might have more approrpiately titled the post 'Dissed Mrs.,' but that misses (mrs.?) the point. Then again, I could have gone neutral - and also avoided embarrassing myself in case the pair has split - and called it 'Dissed Ms.' I chose not to use this version, as it removed the subtle reference to 'Swiss Miss,' but I digress. For more fun adventures with the Anikeyevas, I direct the reader to Circle Intl. Group, Inc. v Anikeyeva, 2005 NY Slip Op 50979(U) (Sup. Ct., Kings Cty., 2005).

Quis custodiet ipsos custodes?

Many judges throughout the New York City Civil Court system - and possibly beyond - have been out yesterday and today for conferences. There is no truth to the rumor that the Courts have been issuing better decisions as a result of the absence. ;)

Schepp, Part XLVLCLVXIVM

Your humble affirmant is currently knee-deep (quite literally, were you to see my office) entrenched in the ever-ongoing litigation between various no-fault insurance carriers and the medical facilities purportedly owned by Dr. Robert Scott Schepp, M.D.: Deajess Medical Imaging, P.C., Boston Post Road Medical Imaging, P.C., and Preferred Medical Imaging, P.C. As noted recently on this blog in "Carothers, Part CLXXXVI," those 3 Schepp facilities eventually became Andrew Carothers, M.D., P.C. The Schepp facilities have recently filed suit against approximately 25 insurance carriers seeking a declaration that, inter alia, they were and are in compliance with the "Business Corporate Law" [sic] and thus entitled to no-fault reimbursement. The suit is Deajess Medical Imaging, P.C., et al., v. AIG Insurance Company, et al. (Sup. Ct., Nassau Cty., Index No. 013569/06). The action is related to a previously-commenced Nassau Cty. action, AIU v. Deajess, which is described in the prior post here concerning Carothers.

Anyway, I say all of this in apology for the lack of substantial updates thus far this week. The irony is not lost on me that I am unable to make posts of any value while holed up at my computer, yet am able to do so when engaging in a more vigorous schedule of appearances.

Your condolences for my plight will be accepted by PayPal, etc. ;)

Save the Date

For what it's worth, the appeal in Long Is. Radiology v Allstate Ins. Co., 2006 NY Slip Op 51090(U) (Sup. Ct., Nassau Cty., 2006) is set to be heard before the Appellate Division, 2d Dep't on November 2, 2006.

Oh, and Happy Monday to all. ;) There seem to be quite a few silent readers out there, so please drop a line (or anonymous comment, if need be) and inform us as to whether or not you found this prior week's posts to be useful/readable/etc.

Edit @ 2:22PM - I've realized I might've had my settings goofed up for commenting. If you tried and failed previously, give it another shot. :)

Facts and Amounts

I've spoken with a number of attorneys who have expressed confusion to me as to whether a plaintiff's prima facie burden for a summary judgment motion (the subject of most Appellate Term decisions) differs from the applicable burden at trial. According to the App. Term, 2d Dep't, they are identical.

As to motions, the landmark App. Term decision on the matter is Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701(U) (App. Term, 2d Dep't, 2003). As per the most recent App. Term decisions, the rule has now boiled down to the following: "In an action to recover first-party no-fault benefits, a plaintiff establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue." Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co., 2006 NYSlipOp 51877(U) (App. Term, 2d Dep't, 2006) (citations omitted).

In Damadian MRI in Canarsie, P.C. v General Assur. Co., 2006 NYSlipOp 51048(U) (App. Term, 2d Dep't, 2006), the Court was called upon to determine the plaintiff's burden at trial, and they held that "[i]t is well settled that a health care provider establishes its prima facie entitlement to judgment as a matter of law by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue." (Citations omitted).

Thus, although methodology of proof will necessarily differ due to the procedural mechanics of each, plaintiff maintains the same burden at trial as it does when seeking summary judgment.