Ultimate Med. Supplies v Lancer Ins. Co. (2004 NY Slip Op 51860(U))

Civil Court, Kings County

313390-03

Alice Fisher Rubin, J.

This no-fault action was brought to recover judgment in the amount of $2,517.00, and statutory legal fees and interest from May 2, 2000, for prescribed orthopedic devices provided by Ultimate Medical Supplies to Cedric Wright. Plaintiff provided bills to Defendant, Lancer Insurance Company (Lancer). Defendant denied payment claiming the defense of medical necessity. Plaintiff commenced this action against Lancer by service of a summons and complaint.

A trial was held before this Court on June 8, 2004.and June 9, 2004. At the conclusion of the trial, both parties were advised that the Court would accept post trial memorandums of law to be submitted on or before June 25, 2004. Defendant submitted a timely memorandum; plaintiff did not submit.

Plaintiff’s case consisted of the testimony of Peter Tiflinsky, principal of plaintiff Ultimate Medical Supplies, Inc., and the admission of five exhibits, including three bills, a medical supply invoice, a delivery receipt for a TENS Unit and the comprehensive report of Dr. Opam, together with his letter of May 23, 2001.

Defendant’s case consisted of the testimony of Dr. Francine Moshkovski (the doctor who performed the independent medical examinations and the peer review) and four exhibits, including a delay letter, an NF-10 denial, a subpoena with an affidavit of service upon the claimant/assigner, and a copy of Dr. Moshkovski’ s peer review report.

Defendant’s post-trial memorandum listed five issues involved in this matter. Those issues include: Receipt of Dr. Moshkovski ‘s testimony; the failure of the Plaintiff to prove a valid assignment; the failure of the Plaintiff to prove any evidence as to the necessity for a LSO; the contested evidence as to the medical necessity; and the evidentiary effect of the failure of the Claimant/assignor to appear subject to subpoena.

The Court will address each of the issues in the order listed.

1. Dr. Francine Moshkovski’s Testimony

It is well established law that one testifying as an expert “should be possessed of [*2]the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable.” Marrot v Ward, 48 NY2d 455, 459, 423 NYS2d 645. Dr. Moshkovski testified that she was a graduate of a medical school, received post-graduate training in the field of physical medicine and rehabilitation, and was qualified as a diplomat of the American Board of Physiatrists. She further testified that her medical speciality dealt with the treatment of muscular-skeletal and neuro injuries and conditions, and the relief of pain. She has practiced and taught in her field for 17 years. Furthermore, after stating her qualifications, the witness testified without objection.

It is also established law that the Trial Judge need not “certify” the witness as an expert. People v Gordon, 202 AD2d 166, 608 NYS2d 192, lv den 83 NY 911. It is the Court’s opinion that Dr. Moshkovski met the standards to qualify as an expert.

2. The Plaintiff’s Prima Facie Case

Defendant, in its closing statement and in its post-trial memorandum, argues that Plaintiff has not established a prima facie case. Two essential elements in maintaining an action seeking the recovery of first party no-fault benefits are proof of assignment and proof that the claim was mailed to the insurer. Advanced Medical Rehabilitation P.C. v Travelers Property Casualty Insurance Co. N.Y.L.J. March 25, 2004, p. 19, col. 3. The second element was stipulated to and is not an issue. Despite Defendant’s contention that there was no assignment, there was a concession made by Defendant during the testimony of Plaintiff witness, Peter Tiflinsky. Plaintiff had offered a delivery receipt into evidence (Plaintiff No.1). Mr. Tiflinsky testified that he witnessed the assignor, Cedric Wright, sign the document. Plaintiff moved the document into evidence. Defendant objected. Additional questions were asked of the witness. At the conclusion of the round of questions, Plaintiff offered the document into evidence again, stating: “I offer this document into evidence once again in so far as the witness testified that he observed the assignee signing this document.” (P. 16). Defendant asked “for what purpose?”: Plaintiff responded, “verifying his signature on the assignment we are standing to sue here today.” Defendant’s responded: “I have no problem with it going in as an assignment, your Honor.” At the time of trial, the Court ruled Plaintiff had met the requirements of establishing its prima facie case. Upon review of the transcript and the evidence, the Court stands by its ruling.

3. The failure of the Plaintiff to prove any evidence as to the necessity for a LSO .

It was stipulated that all bills were sent timely and a verification request was made timely and a narrative from the referring physician and a letter of medical necessity for a custom fitted LSO was submitted timely. The denials were based on the peer review ‘s lack of medical necessity.

Dr. Moshkovski testified that she can find no support in the medical reports furnished to her by the Plaintiff for a prescription for a Lumbosacaral support. However, Plaintiff’s evidence #

5, the report of Metropolitan Multi-Special Medical Center P.C., dated February 20.2001, p. 4. Indicates that a cervical pillow, lumbar support, massager, car seat and ice packs were prescribed. [*3]

Defendant’s post-trial memorandum indicates that Dr. Moshkovski’s Peer Review Evaluation indicated that the prescription was signed by Dr. Schwartz. There is no testimony from Dr. Moshkovski, (but there was mention of Dr. Schwartz in her Peer Review Report which was in evidence), or anyone else to determine who Dr. Schwartz is. Nonetheless, there is no question in the Court’s mind that Dr. Opam had recommended such a device and indicated in his report that such a device had been prescribed.

4. The contested evidence as to the medical necessity.

Dr. Moshkovski testified that based on her experience none of the prescribed durable medical equipment are necessary. She cited to no authority other than her own experience. More telling as to her bias was her response to Plaintiff’s question on cross-examination where she was asked: “I’ m asking you, isn’t it a fact that you took the tests that were in the report that worked for you and included them in your peer review and left out the ones that went against you?” Yes or no? (p. 75, L. 14-17)

Dr. Moshkovski’s response: “I’ll say yes” . (P. 15 L. 18)

It is clear to the Court that Dr. Moshkovski admitted to never prescribing any of the medical equipment, with the sole exception of ice packs, on no basis other than her own opinion. Such an opinion is biased against the prescribing doctor as to make the peer review a nullity and not credible.

5. The evidentiary effect of the failure of the Claimant/assignor to appear subject to subpoena.

Defendant argues in his post-trial memorandum that the Plaintiff stands in the shoes of the assignor, Cedric Wright. Plaintiff’s only benefits are based upon the rights that have been assigned to him by Mr. Wright. It is Defendant’s contention that since there is no proof of an assignment; therefore the Plaintiff has no standing to sue and the case should be dismissed. The court has ruled, both at trial and in this decision, that Plaintiff has met the burden of establishing a prima facie case. Therefore, the motion to dismiss is denied.

A subpoena was served upon Mr. Wright, which was ignored. Defendant, therefore, wishes the court to consider Mr. Wright a missing witness and infer that the testimony of Mr. Wright would not support the contentions of Plaintiff. The burden is on the party who seeks the benefit of the inference to establish that there is a witness who can give material evidence, Fremont v Metropolitan S. R. Co., 83 App Div 414, 82 NYS 307. Also, the party seeking the charge has the burden to notify the court as soon as practicable, and to establish that there is an uncalled witness believed to have knowledge on a material issue; that the witness can be expected to testify favorably to the opposing party, and that such party has not called the witness, Papa v New York, 194 AD 527, 598 NYS2d 558. Other than moving the subpoena into evidence without objection, there was no offer of proof to satisfy the requirement of notification to the Court about this witness. The other requirements of a missing witness charge, had this been a jury trial were also unsatisfied since there was no discussion on the record, other than the offering of the subpoena into evidence and the arguments made in the post-trial memorandum. Therefore, the Court declines to infer negative testimony would be elicited had Mr. Wright appeared. [*4]

Based on all of the foregoing items, the Court hereby directs the clerk of the court to enter judgement in favor of the Plaintiff and against Defendant, in the amount of $2,517.00, plus statutory legal fees and interest from May 2, 2000.

This constitutes the decision and order of this Court.

Court Attorney to notify.

Dated: Brooklyn, New York

December 17, 2004

_______________________________

ALICE FISHER RUBIN,

Judge of the Civil Court