Court Sets Scope of Discovery in Intoxication Exclusion Defense to Hospital's No-Fault Billing Action

NO-FAULT – HOSPITAL BILLING – INTOXICATION EXCLUSION – SCOPE OF DISCOVERY
Westchester Medical Center a/a/o Donald Gjelaj v. State Farm Mut. Auto. Ins. Co.
(Sup. Ct., Nassau Co., decided 2/25/2009)

In October 2007, the Second Department modified Nassau Supreme's order to deny plaintiff's motion and State Farm's cross motion for summary judgment, holding that State Farm had not proven the assignor's intoxication as a matter of law.

The parties returned to Nassau County and proceeded with discovery.  State Farm served plaintiff hospital with document demands, interrogatories and a notice to depose the assignor.  When plaintiff didn't respond, State Farm to move to compel, and plaintiff cross-moved for a protective order limiting State Farm's Demand for Interrogatories and striking its Notice for Discovery and Inspection.  With respect to State Farm's notice to depose the assignor, plaintiff argued that the assignor was a non-party witness over whom the hospital had no control or any contact or communication after his discharge.

In granting some relief to each party,  Nassau County Justice William LaMarca:

• ordered plaintiff to respond to State Farm's interrogatories that sought the names, addresses, telephone numbers and license numbers of those individuals who were involved in the patient's treatment or laboratory testing; 
• struck State Farm's notice to depose the assignor based on the fact that it directed plaintiff to produce a person who was not an employee or agent of the hospital;
• struck State Farm's document demands for HIPAA authorizations, police reports, MV104 forms, and copies of all criminal charging documents and court paper work, holding that many of the demanded documents were available to State Farm as public records; and
  
• directed the hospital to provide responses to all demands for health service and treatment information pursuant to the authorization in the prescribed no-fault bill (Hospital Facility Form).
  

Appellate Term Holds that If Uncertain, Provider Must Ask What Follow-Up Verification Is Still Missing

NO-FAULT – NF-5 HOSPITAL FACILITY FORM – VERIFICATION – PRESUMPTION OF RECEIPT
Mary Immaculate Hosp. a/a/o Jonnise Atwater & Cossandra Cogdell v. New York Cent. Mut. Fire Ins. Co.
(App. Term, 2nd Dept., decided 10/9/2008)

Somethings old, something new in this decision.

In affirming that part of the Nassau District Court's granting plaintiff's cross motion for summary judgment on its first cause of action (assignee Atwater's bills), the Appellate Term held that a no-fault insurer must accept a completed hospital facility form (NF-5) submitted by a provider of health services with respect to the claim of that provider in lieu of a prescribed application for no-fault benefits from the eligible injured person (NF-2) See, 11 NYCRR § 65-3.5 [g]. NYCM acknowledged receipt of NF-5s for both assignees and, therefore, Nassau District properly denied its motion for summary judgment on this ground.

With respect to Atwater's hospital records, the Appellate Term held:

[W]ith respect to Ms. Atwater's hospital records, plaintiff's submissions, consisting of a certified mail receipt and a signed return receipt postcard, each bearing the same number and a notation to the relevant medical records, created a presumption of their receipt (see e.g. New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730-731 [2007]). Since defendant failed to rebut said presumption (id.), it did not demonstrate that plaintiff failed to respond to this request for verification. Therefore, it cannot be said that defendant was entitled to summary judgment, with respect to plaintiff's first cause of action, on the ground that plaintiff failed to provide it with Ms. Atwater's hospital records. Nor did defendant raise a triable issue of fact sufficient to defeat plaintiff's cross motion. Accordingly, the court below properly granted plaintiff's cross motion for summary judgment with respect to plaintiff's first cause of action.

It was with respect to NYCM's follow-up verification request for assignee Cogdell's assignment of benefit form, however, that the Appellate Term paved new ground on the roadway of no-fault decisional law:

However, with respect to the verification request seeking a completed assignment of benefits form executed by Ms. Cogdell, the record shows that defendant timely mailed the verification request and follow-up request seeking said assignment of benefits form, and that plaintiff did not respond to said requests. Contrary to plaintiff's assertions, the affidavit of defendant's no-fault litigation examiner was sufficient to demonstrate that said requests were properly mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), and the follow-up request was in proper form (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 9th & 10th Jud Dists 2007]). While plaintiff argues that the follow-up request was defective in that it failed to identify "in writing the missing verification" (see Insurance Department Regulations (11 NYCRR) § 65-3.6 [b]), we find that this contention lacks merit because the initial and the follow-up request were both seeking verification from plaintiff and, if plaintiff was uncertain as to what information defendant's follow-up request was seeking, plaintiff should have resolved the issue by communicating with defendant rather than ignoring the follow-up request (see Westchester County Med. Ctr. v New York Cent. Mut. Fire. Ins. Co., 262 AD2d 553 [1999]; Metroscan Med. Diagnostics, P.C. v Progressive Cas. Ins. Co., 15 Misc 3d 126[A], 2007 NY Slip Op 50500[U] [App Term, 9th & 10th Jud Dists 2007]).

Regular readers may recall several recent decisions in which New York courts have put the onus on no-fault insurers to do something rather than nothing in the face of what they believe are incomplete verification requests. See, e.g., Media Neurology, P.C. a/a/o Harris v. Countrywide Ins. Co. (NYC Civil, Kings Co., decided 9/15/08); Lenox Hill Radiology, PC, a/a/o Busanet v. Allstate Ins. Co., (NYC Civil, New York Co., decided 8/4/2008).

The Appellate Term, Second Department, has now served notice on providers that they, too, may not simply ignore a follow-up verification request but must ask if they are uncertain of what is being sought.