Tuesday, July 15, 2008

Hospital's Action Dismissed as Premature -- Incomplete Verification

Westchester Medical Center a/a/o Mitchell Fuchs v. Mercury Cas. Co.
(Sup. Ct., Nassau Co., decided 6/27/2008)

WMC sued for payment of a $42,024.64 hospital bill. The assignor was injured in a November 10, 2007 MVA, and Mercury received the billing on January 10, 2008. On January 22, 2008, Mercury sent an additional verification request to WMC and the assignor requesting receipt of the insured' s blood alcohol level and a copy of the police report. Having received neither within 30 days, Mercury sent a timely follow-up additional verification request, which also went unanswered.

WMC argued that Mercury's additional verification requests were defective because it only drew but did not test the assignor's blood and did not have possession of the police report. In addition to establishing that it sent the additional verification and follow-up requests, Mercury claimed that it had yet to receive the consent to obtain the assignor's blood sample, or an application for no-fault benefits.

In denying WMC's motion for summary judgment and granting Mercury's motion, dismissing the complaint as premature, Nassau County Supreme County Justice Kenneth Davis held:

Here, Mercury Casualty requested its initial verification form requesting a consent to obtain the blood sample, the actual blood sample and an application for benefits, to both the insured and Westchester Medical on January 22, 2008 , twelve days after receipt of the application. Although the verification request was sent 2 days after the statutory prescribed 10 business days, the insurer was not prevented from requiring proof of claim. 11 NYCRR 65.15(g)(6).

When both the insured and Westchester Medical failed to respond, a second request was made on February 22, 2008. The Court finds that the information was timely requested from the appropriate parties, the insured and the health care provider, along with the third party police department. In order for the insurer to have properly and timely requested the blood alcohol test results, it had to forward prescribed verification forms to the appropriate parties within 10 days after receipt of the completed application. 11 NYCRR 65.15(d)(1); Presbyterian Hosp. the City of New York v. Maryland Cas. Co. , 90 N.Y.2d 274 (1997). The Courts finds that Mercury took the appropriate action, and properly sought to extend the time frame by requesting verification. Therefore Westchester Medical' s motion for summary judgment is denied.

The defendant demonstrated its entitlement to summary judgment by proving that it timely requested additional verification from the plaintiff, regarding the issue of the driver's alleged intoxication at the time of the accident, within the requisite periods, and that such information was never received. In opposition, Westchester Medical Center failed to demonstrate the existence of a triable issue of fact. Moreover, pursuant to § 5103(b)(2), and 11 NYCCRR § 65-8 the defendant was acting within its rights to request the verification.

Regarding Westchester Medical's claim that the additional information requested was not in its custody or control, the Court finds this argument is without merit. 11 NYCRR 65-3.8(g) provides that proof of claim is not complete until the insurer is furnished with "all available information" relating to the insured's condition at the time of the accident. However, "available information" includes only information within the control of the health care provider or the insured, or information obtainable by those parties through reasonable effort.

Westchester Medical claims that they merely drew the plaintiff's blood and did not actually test it, however with reasonable efforts Westchester could have provided Mercury with the information requested as the insured's medical information (i.e. blood alcohol level) was available to the treating hospital. Moreover, the insured could reasonably have provided consent to release the information requested, even if in the custody and control of the police department. The insurer is entitled to receive all items necessary to verify the claim "directly from the parties from whom such verification is requested." 11 65-3.5(c). Mercury took timely action to attain the requested information from the appropriate party. Mercury also took action to attain the information requested from the appropriate third party police department. The Court finds that the plaintiff' failure to provide the information requested rendered the claims incomplete.

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