Lenox Hill Hosp. v Allstate Ins. Co. (2011 NY Slip Op 50800(U))

District Court of Nassau County, First District

25241/09

Attorneys:

Plaintiff – Joseph Henig

Defendant – McDonnell & Adels, P.C.

Fred J. Hirsh, J.

The following named papers numbered 1 – 4

submitted on this motion on March 17, 2011

Papers NumberedNotice of Motion and Affidavits Annexed1-2

Order to Show Cause and Affidavits Annexed

Affirmation in Opposition3

Replying Affidavits4

This action raises questions about the proof that must be adduced by a hospital to establish a prima facie entitlement to judgment as a matter of law in an action for first party no-fault benefits.

BACKGROUND

This action combines two unrelated claims for first party no-fault benefits. The only thing these actions have in common is that Allstate Insurance Company (“Allstate”) is the no-fault carrier for both claims.

This action was commenced in Supreme Court Nassau County and was transferred to the District Court pursuant to CPLR 325(d).

A. Lenox Hill Hospital a/a/o of Eduardo Marrero v. Allstate Insurance Company

Eduardo Marrero (“Marrero”) was admitted to and received treatment at Lenox Hill Hospital (“Lenox Hill”) from July 13, 2009 through July 30, 2009. The treatment he received at Lenox Hill is alleged to be for injuries he sustained in a July 12, 2006 motor vehicle accident.

Marrero assigned his rights to receive payment of no-fault benefits for this treatment to Lenox Hill.

Lenox Hill’s third-party biller, Hospital Receivable Systems, Inc. (“HRS”) prepared and mailed the bill for treatment, the no-fault application (“NF-5”), and the assignment [*2]of benefits to Allstate Insurance Company (“Allstate”), the no-fault insurance carrier.

The hospital bill prepared and issued by Lenox Hill is in the sum of $185,332.92.

Attached to the NF-5 is a document on the letterhead of D.R.G. Master, Inc. designated as a “D.R.G. Master Output Report No Fault Version 8.3R” (“DRG”). The DRG, which is not explained, contains calculations to determine the allowable charges under the No-Fault Law (Insurance Law §5108) for the services rendered to Marrero at Lenox Hill. Based upon the calculations contained in the DRG Lenox Hill submitted a claim seeking payment of $54,167.24 for the services rendered to Marrero.

The assignment contains a notation that payment should be mailed to the Lenox Hills’ attorney at the attorney’s office address.

The aforementioned documents were mailed to Allstate by HRS by certified mail, return receipt requested. The certified mail receipt indicates the documents (NF-5, assignment, bill and DRG) were mailed to Allstate of October 8, 2009 and received by Allstate on October 12, 2009.

The affidavit of Pat Thompson (“Thompson”) of HRS addresses only the mailing of the of the documents to Allstate. This affidavit states Thompson is an employee of HRS. The affidavit does not discuss who prepared the NF-5, the hospital bill and/or the DRG, who provided HRS with the information contained in the documents and the relationship between Lenox Hill and HRS other than to state HRS is a Biller and Account Representative for Lenox Hill.

Lenox Hill alleges more than 30 days have elapsed since the bill was received and the bill has not been paid. Therefore, Lenox Hill is entitled to summary judgment.

Allstate asserts summary judgment should be denied because it timely denied this claim by mailing a denial to Lenox Hill dated October 30, 2009. The denial states the claim was denied based upon the Independent Medical Examination (“IME”) of Michael J. Katz, M.D. (“Dr. Katz) performed on 9/27/06. Dr Katz rendered a report dated 9/27/06 that stated Marrero had made a full recovery from the injuries he sustained in the July 12, 2006 motor vehicle accident. Dr. Katz report states Marrero is no longer in need of any medical care or treatment and does not need surgery.

B. Mount Sinai Hospital a/a/o Gregory Bar v. Allstate Insurance Company

Gregory Bar (“Bar”) received treatment for at Mt. Sinai Hospital (“Mt. Sinai”) on September 14-15, 2009 for injuries alleged to have been sustained in a motor vehicle accident of June 20, 2009.

Bar assigned his right to receive payment of no-fault benefits for this treatment to Mt. Sinai.

The bill issued by Mt. Sinai indicates the charges for the treatment as $4990.45.

Mt. Sinai’s third party biller, HRS, prepared and submitted the NF-5 together with a copy of the Mt. Sinai bill and assignment to Allstate for payment. The NF-5 indicates the amount due Mt. Sinai for the treatment or services provided to Bar in accordance with the no-fault schedule is $1515.96. Nothing in the papers explains the difference in the amount stated in the Mt. Sinai bill and the amount claimed to be due on the NF-5.

HRS mailed the NF-5, the assignment and the bill to Allstate on October 5, 2009 by certified mail, return receipt requested. The return receipt indicates the bill was received by Allstate on October 8, 2009. [*3]

The affidavit of Pat Thompson again addresses only the issue of mailing of the claim and other documents. The affidavit does not state who prepared the NF-5, the hospital bill or assignment or where the information contained in these documents was derived. Thompson’s affidavit states HRS is a Biller and Account Representative fo Mt. Sinai.

Mt. Sinai asserts it is entitled to summary judgment because more than 30 days have elapsed since the claim was submitted and claim has not been paid.

Allstate asserts it is not obligated to pay Mt. Sinai’s claim because on October 26, 2009 it sent a verification request to Mt. Sinai. Since Mt. Sinai did not respond to the October 26, 2009 verification request, Allstate sent a second verification request to Mt. Sinai by letter dated November 27, 2009. Allstate asserts Mt. Sinai did not respond to the follow-up verification request either.

DISCUSSION

The party moving for summary judgment must submit evidentiary proof in admissible form sufficient to establish a prima facie entitlement to judgment as a matter of law. Zuckerman v. City of New York, 49 NY2d 557 (1980). If the party moving for summary judgment does not make a prima facie showing of entitlement to judgment as a matter of law, the motion must be denied regardless of the sufficiency of the opposition. Winegrad v. New York University Medical Center, 64 NY2d 851 (1985); Cendant Car Rental Group v. Liberty Mut. Ins. Co., 48 AD3d 397 (2nd Dept. 2008); 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).

A claim for no-fault benefits must be paid or denied within 30 days of receipt of the claim including all verification. 11 NYCRR 3.8(a).

A hospital makes a prima facie showing of entitlement to judgment as a matter of law by submitting proof the necessary billing forms and documents have been mailed to and received by the no-fault insurer and payment is overdue. New York Hospital Medical Center of Queens v. Country Wide Ins. Co., 82 AD3d 723 (2nd Dept. 2011); Westchester Medical Center v. Countrywide Ins. Co., 45 AD3d 676 (2nd Dept. 2007); and Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 (2nd Dept. 2004).

A medical provider must establish as part of its prima facie case the billing records submitted for payment are business records. Art of Healing Medicine, P.C. v. Travelers Home and Marine Ins. Co., 55 AD2d 644 (2nd Dept. 2008); and Dan Medical, P.C. v. New York Central Mut. Fire Ins. Co., 14 Misc 3d 44 (App. Term 2nd & 11th Jud. Dists. 2006).

All medical providers, other than hospitals, must establish as part of their prima facie proof in an action for first party no-fault benefits the claim forms and bill are business records. See, Viviane Etienne Medical Care, P.C. v. County-Wide Ins. Co., supra – physician’s services; Lenox Hill Radiology v. New York Central Mut. Fire Ins. Co., 20 Misc 3d 851 (Dist. Ct. Nassau Co. 2008) – radiological services; Craigg Total Health Family Health Chiropractic Care, P.C. v. QBE Insurance Corp., 20 Misc 3d 1118(A) (Dist. Ct. Nassau Co. 2008) – chiropractic services; North Acupuncture, P.C. v. State Farm Ins. Co., 14 Misc 3d 130(A) ( App. Term 2nd & 11th Jud. Dists. 2005) – acupuncture treatment; Bayside Rehab. & Physical Therapy, P.C. v. Geico Ins. Co., [*4]24 Misc 3d 542 (Civil Ct. Richmond Co. 2009) – physical therapy treatments; Complete Orthopedic Supplies, Inc. v. State Farm Ins. Co., 16 Misc 3d 996 (Civil Ct. Queens Co. 2007) – durable medical supplies.

The testimony or affidavit of a third party biller is insufficient to lay the foundation necessary to establish the claim form and billing documents are business records. Andrew Carothers, M.D., P.C. v Geico Indemnity Co., 79 AD3d 864 (2nd Dept. 2010: and Viviane Etienne Medical Care, P.C. v. Country-Wide Ins. Co., 31 Misc,3d 21 (App.Term, 2nd, 11th & 13th Jud. Dists. 2011).

The cases regarding hospital and cases regarding all other medical providers have developed on parallel tracks. The cases involving motions for summary judgment relating to hospital admissions do not address or discuss whether the hospital must establish the necessary billing documents ( NF-5, bill, assignment) are business records of the hospital.This Court can find no basis in the no-fault law or regulations why there should be a difference in the proof required of a hospital and the proof required of all other medical providers to establish a prima facie entitlement to judgment as a matter of law. A hospital should as part of its prima facie proof be required to establish the no fault claim, bill and other documentation submitted in connection with a clam to obtain payment of first party no-fault benefits is a business records.

The proof submitted in connection with this case does not establish the bill submitted by either Lenox Hill or Mt. Sinai is a business record of either hospital. William Conover, Inc. v. Waldorf, 251 AD2d 727 (3rd Dept. 1998). The affidavits of Lenox Hill and Mt. Sinai’s third party biller do not even attempt to lay the proper foundation to establish the documents submitted to Allstate were business records of either hospital. Since the plaintiffs have failed to establish a prima facie entitlement to judgment as a matter of law, their motion for summary judgment must be denied.

Allstate’s assertions that it timely denied the Lenox Hill claim and did not have to pay or deny the Mt. Sinai claim because Mt. Sinai did not respond to its request for verification are without merit.

Allstate produced a denial of the Lenox Hill bill dated October 30, 2009 in which it denies the entire claim on the grounds all no-fault benefits for orthopedic treatment had been denied effective 10/16/06 based upon the IME of Dr. Katz.

Except for limited non-precludable defenses, none of which are involved in this action, a no-fault carrier is precluded from raising defenses not asserted in timely served denial. 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). Allstate would be precluded from raising the defense the treatment provided to Marrero by Lenox Hill was not medically necessary unless it established the denial was timely mailed. Bath Medical Supply, Inc. v. Allstate Indemnity Co., 13 Misc 3d 142(A) (App. Term 2nd & 11th Jud. Dists. 2006). The no-fault insurer must establish through proof in admissible form either the actual timely, mailing of the denial or it has “…standard office practices and procedures designed to ensure that items were properly addressed and mailed (citations omitted).” St. Vincent’s Hospital of Richmond v. Government Employees. Ins. Co., 50 AD3d 1123 (2nd Dept. 2008).

Allstate did not provide an affidavit or any other proof establishing actual mailing

of the denial to Lenox Hill. The affidavit of Allstate’s Litigation Claims Representative [*5]does not state Allstate’s standard office practices and procedures for preparing, addressing and/or mailing denials.

An insurer does not have to pay or deny a no-fault claim until it has received all timely demanded verification. Hospital for Joint Diseases v. New York Central Mut. Fire Ins. Co., 44 AD3d 903 (2nd Dept. 2007); an 11 NYCRR 65-3.8(c). The insurer has 10 business days from receipt of the claim to request verification. 11 NYCRR 65-3.5(a).

See, SZ Medical, P.C. v. Country-Wide Ins. Co., 12 Misc 3d 52 (App.Term 2nd & 11th Jud. Dists. 2006).

Allstate acknowledged it received the bill from Mt. Sinai on October 8, 2009. It had 10 business days from October 8, 2009 to request verification. The 10th business day after to claim from Mt. Sinai was received was October 23, 2009. The first verification request was dated October 26, 2009, which is more than 10 days from receipt of the claimAdditionally, Allstate fails to submit any evidence establishing it had an office practice or procedure designed to ensure the timely mailing of verification and follow up

verification requests. St. Vincent’s Hospital of Richmond v. Government Employees Ins. Co., supra: and Sound Shore Medical Center v. New York Central Mut. Fire Ins. Co., 30 Misc 3d 131(A) (App. Term, 9th & 10th Jud. Dists. 2011).

While timely denial of the Lenox Hill claim and failure to respond to verification requests regarding the Mt. Sinai claim may be valid defenses to these claims, the affidavits submitted in opposition to plaintiff’s motion to not provide proof in evidentiary form sufficient to establish theses defenses. However, since plaintiffs failed to establish through proof in admissible form a prima facie entitlement to judgment as a matter of law, plaintiff’s motion for summary judgment is denied.

SO ORDERED:

Hon. Fred J. Hirsh

District Court Judge

Dated: May 3, 2011

cc:Law Offices of Joseph Henig, P.C.

McDonnell & Adels, PLLC