Elmont Open MRI & Diagnostic Radiology P.C. v Progressive Cas. Ins. Co.

[*1] Elmont Open MRI & Diagnostic Radiology P.C. v Progressive Cas. Ins. Co. 2009 NY Slip Op 50693(U) [23 Misc 3d 1110(A)] Decided on April 6, 2009 District Court Of Nassau County, First District Hirsh, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 6, 2009
District Court of Nassau County, First District

Elmont Open MRI & Diagnostic Radiology P.C. D/B/A/ ALL COUNTY OPEN MRI & DIAGNOSTIC RADIOLOGY A/A/O ANDREA HENRY, Plaintiff(s),

against

Progressive Casualty Insurance Company, Defendant.



8153/08



Plaintiff: Friedman, Harfenist, Kraut & Perlstein, Esqs.

Defendant: DeMartini & Yi, LLP

Fred J. Hirsh, J.

Defendant Progressive Casualty Insurance Company ("Progressive") moves for summary judgment. Plaintiff Elmont Open MRI & Diagnostic Radiology, P.C. ("Elmont") cross-moves for summary judgment.

BACKGROUND

Andrea Henry ("Henry") was injured in an automobile accident that occurred on October 16, 2007. Her treating doctor prescribed MRI's of the cervical, thoracic and lumbar spines.

The MRI of the lumbar spine was performed by Elmont on November 24, 2007. The MRI's of the cervical and thoracic spines were performed by Elmont on December 27, 2007.

Henry assigned her right to receive no-fault benefits for the MRI's to Elmont.

Elmont submitted the bills for the MRI's to Progressive, the insurance carrier that provided no-fault benefits for Henry. Progressive received the bill for the MRI of the cervical spine on December 26, 2007 and the bill for the MRI's of the cervical and thoracic spine on January 11, 2008.

Progressive claims it denied the bill for the lumbar MRI by denial dated January 18, 2008. Progressive claims it denied the bill for the cervical and thoracic MRI's by denial dated February 1, 2008.

The denial of benefits was based upon the peer review report of Harvey Goldberg, M.D. ("Dr. Goldberg").

Progressive asserts the peer review report of Dr. Goldberg establishes the MRI's were not medically necessary. Progressive further asserts the affidavit of Christopher R. Kenny ("Kenny") establishes Progressive's office procedures for preparing, addressing and mailing denials of claims. The Kenny affidavit purports to establish [*2]Progressive had established a procedure to ensure proper and timely mailing of denials.

Elmont asserts Dr. Goldberg's peer review reports are inadequate to entitle Progressive to judgment as a matter of law. They further assert the Kenny affidavit does not establish the denials were timely mailed.

Elmont cross-moves for summary judgment. Elmont establishes it timely filed the claim. The timely filing of the claim is based upon the affidavit of Brijukmar Yamraj ("Yamraj") Elmont' s medical billing collection supervisor and Progressive's NF-10. the Denial of Claim form .

Elmont performed the MRI of Henry's lumbar spine on November 24, 2007. The bill for this MRI is dated November 29, 2007. Progressive acknowledges receipt of this bill on December 26, 2007.

Elmont performed the MRI's of Henry's thoracic and cervical spine on December 12, 2007. The bill is dated December 20, 2007. Progressive acknowledges receipt of this bill on January 11, 2008.

Elmont asserts this establishes the claims were received by Progressive within 45 days of the date services were rendered. 11 NYCRR 65-1.1. Progressive admits it has not paid the bills. Elmont claims the timely submission of the bills coupled with Progressive's failure to pay within 30 days establishes its entitlement to summary judgment.

DISCUSSION

A no-fault insurer who denies a claim on the basis of lack of medical necessity must establish that the services were inconsistent with generally accepted medical practices. The opinion of the insurer's expert standing alone is insufficient to establish that the tests were not medically necessary. Delta Medical Supplies, Inc. v. NY Central Mutual Ins. Co., 14 Misc 3d 1231(A) (Civil Ct. Kings Co. 2007); and CityWide Social Work & Psychological Servs. V. Travelers Indem. Co., 3 Misc 3d 608 (Civil Ct. Kings Co. 2004).

Dr. Goldberg's peer review reports are inadequate as a matter of law to establish lack of medical necessity. Dr. Goldberg's peer review report regarding the MRI of the lumbar spine does not state an opinion as to the medical necessity of this MRI. Dr. Goldberg does not state in his report he is familiar with the practices and procedures in the field. He adopts an opinion contained in Current Medical Diagnosis and Treatment, 42nd Ed. ("CMDT"). The court is not provided with a copy of the sections of CMDT upon which Dr. Goldberg relies.

Dr .Goldberg never states in his peer review report that he is familiar with generally accepted medical practices regarding the prescribing of a lumbar MRI, what those practices are and how or why ordering of a lumbar MRI when it was ordered departed from those practices.

Similarly, Dr. Goldberg's peer review report regarding the cervical and thoracic spine is inadequate. He again adopts the opinion of CMDT without stating what that opinion is. He fails to states that he is familiar with the generally accepted medical practices and procedures regarding the ordering of thoracic and/or cervical MRI's, what those standards are, the basis of those standards and/or how or why the MRI's ordered [*3]and performed of Henry's cervical and thoracic spine by Elmont were not in accordance with those practices and procedures.

This problem is compounded by the statement contained in Dr. Goldberg's report that "I would be unable to certify the medical necessity for MRI studies of the cervical spine and thoracic spine planned on 11/29/2007." The issue is not whether Dr. Goldberg would order those tests. In determining whether a test is medically necessary, the question is whether the tests or procedures are in accordance with generally accepted medical practices, not whether the peer review doctor's personal opinion is the tests are not medical necessary. Id. and Nir v. Allstate Insurance Co., 7 Misc 3d 544 (Civil Ct. Kings Co. 2005).

The peer review doctor's must establish a familiarity with generally accepted practice, must establish what generally accepted practice is under the circumstances and must state the questioned treatment was not in accordance with generally accepted medical practice. Williamsbridge Radiology & Open Imaging .v Travelers Indemnity Co., 14 Misc 3d 1231(A) (Civil Ct. Kings Co. 2007).

Before an expert witness is permitted to offer an opinion, the witness must be qualified as an expert. Price v. New York City Housing Auth., 92 NY2d 553 (1998); Caprara v. Chrysler Corp., 52 NY2d 114, rearg. dnd. 52 NY2d 1073 (1981); and Meiselman v. Crown Heights Hospital, 285 NY 389 (1941). To qualify as an expert, the witness must possess "...the requisite skill, training, education, knowledge or experienced from which it can be assumed that the information imparted or the opinion rendered is reliable (citations omitted)." Matott v. Ward, 48 NY2d 455, 460 (1979); and de Hernandez v. Lutheran Medical Center, 46 AD3d 517 (2nd Dept. 2007). Progressive fails to establish Dr. Goldberg is an expert. Progressive does not submit an affidavit or affirmation from Dr. Goldberg. Progressive relies upon the peer review report which is affirmed. The peer review report does not contain any information about Dr. Goldberg's education, training or professional experience. Since Dr. Goldberg has not been qualified as an expert, the court cannot accept his opinion regarding the lack of medical necessity for the cervical, thoracic and lumbar MRI's.

Dr. Goldberg's peer review states the MRI of the lumbar spine "...has not been established as medically necessary."This misstates the burden of proof. Plaintiff proves a prima facie case of medical necessity by submitting proof in evidentiary form the statutorily prescribed forms were timely mailed and received, and the no-fault benefits were nottimely paid. Globe Surgical Supply v. Geico Ins. Co., 59 AD3d 129 (2nd Dept. 2008); and Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 (2nd Dept. 2004). Once plaintiff has met this burden, the burden of proof shifts to the defendant to establish the test or treatment were not medically necessary. A Plus Medical P.C. v. Government Employees Ins. Co., 21 Misc 3d 799 (Civil Ct. Kings Co. 2008). Dr. Goldberg's report does not meet the defendant's burden.

Since the peer review reports of Dr. Goldberg are inadequate to establish a prima facie entitlement to judgment as a matter of law, defendant's motion for summary judgment is denied. Widmaier v. Master Products, Mfg, 9 AD3d 362 (2nd Dept. 2004); and Ron v. New York City Housing Auth., 262 AD2d 76 (1st Dept. 1999).

Elmont has established the statutorily prescribed claim forms were received by Progressive within 45 days of the ay upon which the services were rendered. [*4]Progressive has failed to pay the bills. This Elmont has established a prima facie case that the treatment it provided was medically necessary. Fair Price Medical Supply Corp. v. Travelers Indemnity Co., 10 NY3d 556 (2008); and Hospital for Joint Diseases v. Travelers Property Casualty Ins. Co., 9 NY3d 312 (2007)

Progressive claims it timely denied these claims based upon an affidavit of Christopher R. Kenny ("Kenny"). Kenny was not the Progressive claims representative who issued or mailed the denial. The denial of claims forms were issued by David Karhan ("Karhan").

A no-fault insurance carrier may prove timely mailing of a denial by submitting an affidavit made by the person who actually prepared and mailed the denial attesting to the preparation and mailing of the denial or by submitting an affidavit from an employee with knowledge of its office practice or procedures designed to ensure the denial was timely generated, addressed and mailed and those procedures were followed in connection with the notice involving plaintiff's claim. St. Vincent's Hosp. of Richmond v. Government Employees Ins. Co., 50 AD3d 1123 (2nd Dept. 2008). However, the court did not indicate precisely what must be stated in the affidavit to establish the office practices and procedures were designed to ensure the denial was timely generated, addressed and mailed.

Ideally such an affidavit would be made by the person who prepared the denial notice and would state (1) the affiant prepared the denial notice, (2) put the denial notice in the envelope, (3) checked to determine it was properly addressed, (4) stamped the envelope and (5) deposited the stamped envelope in a mail box. An affidavit made by the person who performed the first three elements and then deposited the envelope in the office outgoing mail together with a statement of familiarity with the procedures used to stamp and mail the items placed in the outgoing mail is sufficient to establish due and timely mailing. Lenox Hill Radiology v. Global Liberty Ins., 20 Misc 3d 434 (Civil Ct. NY Co. 2008).

An insurance carrier could meet the requirement of establishing due and timely mailing by attaching an affidavit of mailing to the office copy of the denial notice.[FN1]

An insurance carrier could meet the requirement of proving due and timely mailing by mailing the denial notice with a certificate of mailing [FN2] or by mailing the denial [*5]notice by certified or registered mail, return receipt requested.[FN3]

The requirement could be met if the medical provider acknowledges or admits the denial notice was timely mailed. This could be accomplished by taking a deposition of the plaintiff (CPLR 3107) at which the plaintiff's witness could be asked if the Notice of Denial, NF-10 was received and if so, when was it received. Similar information could be obtained through interrogatories in which the plaintiff could be asked if it received the Notice of Denial, NF-10 and the date the NF-10 was received. CPLR 3130.

An insurance carrier could also meet the requirement by having the claims representative prepare as part of the claims processing procedure a log indicating the date the claim was received, the action taken on the claim and the date the payment, the demand for verification or the Notice of Denial, NF-10 was prepared and mailed. Such a record or log could, with proper foundation, be established as a business record. CPLR 4518(a).

Problems arise when the affidavit attesting to the preparation and mailing of the denial notice is made by a claims supervisor who has no personal knowledge of how or when the Notice of Denial, NF-10 was prepared or mailed. That is the situation in this case. The only fact Kenny's affidavit can actually attest to is that he has reviewed the office file and found a Denial of Claim, NF-10 for the lumbar spine dated 1/18/08 and a Denial of Claim, NF-10 for the thoracic and cervical spine dated 2/1/08 in the file. Kenny has no first hand knowledge as to whether they were actually prepared on the date stated on the NF-10. The confusion as to the date these NF-10's were actually prepared is compounded by a stamp on the NF-10 for the lumbar spine "Entered by ACL 0006 Jan. 21, 2008" and a stamp on the NF-10 for the thoracic and cervical spine "Entered by SXGD 154 Feb. 4, 2008".

While evidence of habit or custom and practice may be admitted to establish that a person performed a certain act, the person must establish the habit or custom and practice is "...a deliberate and repetitive practice" by a person"in complete control of the circumstances." (Citation omitted) as opposed to "conduct however frequent yet likely to vary from time to time depending upon the surround circumstance" (citation omitted)." Rivera v. Anilesh, 8 NY3d 627, 632 citing Halloran v. Virginia Chemicals Inc., 41 NY2d 386 (1977). Before a person can testify regarding whether a person actions constitute habit or custom and practice, the person offering evidence establishing they are familiar with that person's habits. Halloran v. Virginia Chemicals, Inc., supra; and Beakes v. DaCunha, 126 NY 293 (1891) (plaintiff was permitted to testify it was his practice to be home on a specific day each month to transact business.). Kenny's affidavit does not establish he was familiar with Karhan's practices and procedures in preparing, dating or mailing Denial of Claim, NF-10's. Kenny's affidavit does not even state Karhan was advised of or familiar with Progressive's company practices procedures regarding the preparation, addressing and mailing of NF-10's. Essentially, the court is being asked [*6]to assume Karhan prepared and timely mailed the NF-10's because they are in Progressive's file and are dated within the 30 day period in which the carrier has to pay or deny a claim. 11 NYCRR 65-3.8.

The No-Fault Law and Regulations presents unique issues regarding timely mailing. The no-fault insurance carrier has 30 days from the date of receipt of a claim or verification of the claim to pay or deny a claim in whole or in part. 11 NYCRR 65-3.8. A no-fault insurance carrier who fails to deny a claim within 30 days is precluded from asserting most defenses to the claim. Fair Price Medical Supply Corp. v. Travelers Indemnity, Co., supra; and Hospital for Joint Diseases v. Travelers Property Casualty Ins. Co., supra.[FN4] Therefore, proof of timely mailing of the denial is critical to the defense of lack of medical necessity. Progressive would be precluded from raising this defense unless it proves timely mailing of the denial of claims to Elmont. Careplus Medical Supply, Inc. v. Selective Ins. Co. of America, -Misc.3d-, 2009 WL 679251 (App.Term 9th & 10th Jud. Distrs. 2009).

The proof in this case is insufficient to establish proof of timely mailing. Kenny's review of Progressive's file establishes a copy of the NF-10 was in the file.

Progressive does not even state the reason why it did not submit an affidavit from Karhan, the person with actual first hand knowledge of the preparation and mailing of the NF-10.

The oft stated purpose of the No-fault law is "...to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists." Medical Society of the State of New York v. Serio, 100 NY2d 854, 860 (2003). See, Fair Price Medical Supply Corp. v. Travelers Indemnity Co., supra; and Hospital for Joint Disease v. Travelers Property Casualty Ins. Co., supra.

This court does not believe the stated purpose of the No-fault law is served by permitting the no-fault carrier to defeat a claim by submitting an affidavit by someone who lacks personal knowledge of the facts regarding the preparation and mailing of the Denial of Claim who assumes that because the NF-10 is in the office file and is dated before the 30 day period for paying or denying a claim has expired that the NF-10 was prepared and mailed timely.

This Court believes St. Vincent's requires that if the no-fault insurance carrier cannot present an affidavit made by the person who actually prepared the NF-10 the [*7]affidavit should state: (1) why an affidavit cannot be obtained from the person who actually prepared and/or posted the NF-10 for mailing, (2) the company policy and procedures for preparing, addressing and mailing an NF-10 in effect at the time the NF-10 was prepared and mailed, (3) the claims representative who issued the NF-10 was aware of and advised to comply with company policy regarding the preparation and mailing of these forms, (4) the person making the affidavit knows the person who prepared the NF-10 was aware of company policy, (5) the person making the affidavit was aware that the claims representative who prepared the NF-10 had the habit of complying with company policy and (6) the basis of the person who makes the affidavit's knowledge.

Kenny's affidavit does not contain any of this information other than Progressive's policy regarding the issuance and mailing of Denial of Claims. It does not establish Karhan was aware of this policy or complied therewith. .

Elmont's papers establish an entitlement to judgment as a matter of law. The Yamraj affidavit establishes Elmont's practices and procedures regarding the preparation and mailing of bills. Furthermore, Progressive's NF-10's indicate the bills were received within 45 days of the date the services were provided. Progressive admits they did not pay these bills.

.The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. Winegrad v. New York University Medical Center, 64 NY2d 851 (1985); and Zuckerman v. City of New York, 49 NY2d 557 (1980). Once the party seeking summary judgment has made a prima facie showing of entitlement to judgment as a matter of law, the party opposing the motion must come forward with proof establishing the existence of triable issues of fact or must demonstrate an acceptable excuse for its failure to do so. Zuckerman v. City of New York, supra; and Davenport v. County of Nassau, 279 AD2d 497 (2nd Dept., 2001); and Bras v. Atlas Construction Corp., 166 AD2d 401 (2nd Dept., 1991). Elmont has made a showing of entitlement to a judgment as a matter of law. Progressive has not.

For the foregoing reasons, defendant's motion for summary judgment is denied. Plaintiff's cross-motion for summary judgment is granted. The clerk is directed to enter judgment in favor of the plaintiff and against the defendant in the sum of $2751.34 together with interest in accordance with the No-Fault Regulations and legal fees in accordance with 11 NYCRR 4.6 together with costs and disbursements as taxed by the clerk.

Submit judgment.

So Ordered:

Hon. Fred J. Hirsh

District Court Judge

Dated: April 6, 2009

cc:DeMartini & Yi, LLP

Friedman, Harfenist, Kraut & Perlstein [*8]

Footnotes

Footnote 1:The affidavit of mailing would be similar to and serve the same function as the affidavit of service attached to legal papers served in accordance with CPLR 2103. See, CPLR 2103(f)(1).

Footnote 2:A Certificate of Mailing is document issued by the United States Postal Serivce evidencing that a piece of mail has been delivered to the Postal Service for mailing. The Certificate of Mailing indicates the date the item was mailed. See, United States Postal Service, Domestic Mail Manual, Section 503 - Extra Services 5.0 et. seq. Certificate of Mailing.

Footnote 3:The certified or registered mail receipt would reflect the date the notice was mailed. The return receipt would reflect the date the item was received by the addressee. See, United States Postal Service, Domestic Mail Manual, Section 503 Extra Services - 2.0 et. seq. Registered Mail and 3.0 et. seq. Certified Mail and 6.0 et. seq. Return Receipt.

Footnote 4:The Fair Price case points out the substantial and dire consequences to an insurance carrier who fails to timely deny a claim. Travelers was precluded from asserting a defense of fraud which might rise to the level of penal insurance fraud (See, Penal Law §176.00 et seq.) because the claim was not timely denied. The only defense that are not precluded as a result of an insurance carriers failure to timely deny a claim are lack of coverage [Central General Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195 (1997)], fraudulent incorporation. [State Farm Mutual Ins. Co. v. Malella, 4 NY3d 313 (2005)], and staged accident [Central General Hosp. v. Chubb Group of Ins. Cos., supra; Allstate Ins. Co. v. Massre, 14 AD3d 610 (2nd Dept. 2005); and V.S. Medical Services P.C. v. Allstate Ins. Co., 11 Misc 3d 334 (Civil Ct. Kings Co. 2006)].