Eagle Surgical Supply, Inc. v GEICO Ins. Co.

[*1] Eagle Surgical Supply, Inc. v GEICO Ins. Co. 2013 NY Slip Op 51862(U) Decided on November 14, 2013 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 14, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
570053/13.

Eagle Surgical Supply, Inc., a/a/o Shalina Akter, Plaintiff-Respondent,

against

GEICO Ins. Co., Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Jose A. Padilla, J.), dated November 3, 2011, which, sua sponte, precluded defendant from offering certain evidence and directed a verdict in favor of plaintiff upon the parties' stipulation to plaintiff's prima facie case.

Per Curiam.

Order (Jose A. Padilla, J.), entered on or about May 30, 2012, reversed, without costs, and new trial ordered.

The abbreviated record now before us provides no justification for the trial court's sua sponte determination precluding the defendant insurer from offering medical evidence in support of its defense of lack of medical necessity, based on its apparent failure to obtain a HIPAA-compliant authorization from plaintiff's assignor. Even assuming, without deciding, that defendant is a "covered entity" subject to HIPAA (see 45 CFR § 160.103), an issue not addressed below, defendant should have been given the opportunity to establish that it was entitled to adduce the assignor's medical records without the need of a HIPAA authorization pursuant to the "payment" and "health care operations" exceptions set forth in the governing federal regulations (see 45 CFR 164.506; 45 CFR 164.501; see also Ops General Counsel NY Ins. Dept. No. 03-07-10 [July 2003]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 14, 2013