Mount Sinai Hosp. v. Triboro Coach Inc.
| Decision Date | 29 November 1999 |
| Citation | 699 N.Y.S.2d 77,263 AD2d 11 |
| Parties | MOUNT SINAI HOSPITAL, etc., respondent, v. TRIBORO COACH INCORPORATED, appellant. |
| Court | New York Supreme Court — Appellate Division |
Jerome Cooper, East Norwich, N.Y. (Bertram Herman of counsel), for appellant.
Joseph Henig, P.C., Bellmore, N.Y. (Mark Green of counsel), for respondent.
DANIEL W. JOY, J.P., WILLIAM D. FRIEDMANN, ROBERT W. SCHMIDT and NANCY E. SMITH, JJ.
In this case we are called upon to determine how an insurer, following an untimely disclaimer of coverage, must proceed in order to be allowed to defend against a hospital's no-fault claim on the ground that the injuries for which the patient was
treated did not arise out of an insured incident (Insurance Law § 5106; 11 NYCRR 65.15[g]; see, Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 199, 659 N.Y.S.2d 246, 681 N.E.2d 413).
On January 3, 1997, 33-year-old Maria Figuerdov was injured when the bus in which she was a passenger was involved in an accident. The bus was owned and operated by the defendant, Triboro Coach Incorporated (hereinafter the defendant or Triboro). Figuerdov was taken to the Emergency Room of the Elmhurst Hospital Center, where Dr. Randy Bernot noted that she was complaining of neck and back pain after hitting the right side of her head in the bus accident.
Although the medical documentation is largely illegible, it appears that on January 6, 1997, January 13, 1997, and January 20, 1997, Figuerdov visited her physician complaining that after the incident on the bus she had been experiencing worsening neck and low back pain, pain throughout her entire body but particularly on the left side, decreasing spinal range of motion, and pins and needles sensations in both legs. The physician performed a full examination, which is not in the record. On January 29, 1997, Figuerdov returned to her doctor after falling on the sidewalk due to unsteadiness on her feet. She reiterated her former complaints, adding that her whole left side felt "raw" and that she was experiencing severe "head pain at the base of the neck".
On March 14, 1997, Figuerdov was admitted to the plaintiff, Mount Sinai Hospital (hereinafter the plaintiff, Mount Sinai, or the hospital), for a "craniotomy for trauma". Figuerdov was discharged from Mount Sinai on March 19, 1997, with a bill for services totaling $19,878.63.
Figuerdov retained the law firm of Rovegno and Taylor to file a claim with Triboro (which is self-insured) for no-fault benefits relative to her orthopedic and head injuries. The record discloses that Figuerdov was examined on behalf of Triboro by orthopedic surgeon Dr. Harvey Fishman on July 21, 1997. Correspondence included in the Appendix further evidences that between July and December 1997, Rovegno and Taylor supplied Triboro with authorizations for Figuerdov's complete medical records and CAT scan films. In Triboro's last letter to Rovegno and Taylor, dated December 22, 1997, the defendant indicated (by not renewing any of its prior requests) that it had received all medical information on Figuerdov except for her Bellevue Hospital records, and that Bellevue had informed Triboro that it was currently processing Triboro's demand. Triboro's letter concluded (as its others had done): .
Meanwhile, on November 11, 1997, Mount Sinai, as assignee of Maria Figuerdov, submitted to Triboro a no-fault billing form N-F5, a UB-92 and a DRG Master Output Report, seeking payment of its $19,878.63 hospital bill (see, Public Health Law § 2807-c[b]; 11 NYCRR 65.15[d] ). The forms indicated, inter alia, that Figuerdov's diagnosis was Code # 85220, or "Subdural hemorrhage following injury", and that the "principal procedure" performed was Code # 0131, or "Incision of cerebral meninges". The DRG description was: "CRANIOTOMY FOR TRAUMA AGE [i.e., 'greater than'] 17". The Certified Mail Return Receipt indicates that Triboro received this package on November 14, 1997.
Triboro never paid this claim or issued a Denial of Claim form. Neither did it request additional information or in any way contest the adequacy of the information supplied by Mount Sinai. Indeed, Triboro On January 12, 1998, Mount Sinai sued Triboro for payment of Figuerdov's hospital bill under Triboro's no-fault endorsement. After joinder of issue, the plaintiff moved for summary judgment on the ground that the defendant was precluded from interposing any defense to the hospital's claim because it had neglected to issue a denial of claim form within 30 days of receiving the no-fault claim, as was required by Insurance Law § 5106(a).
issued no response whatever to Mount Sinai's application.
In opposition, Triboro's attorney submitted an affirmation in which he asserted that Triboro's defenses were not waived, and were not "constrained by any time limit", where, as here, the insurer alleged that the patient's condition was entirely unrelated to the accident. According to counsel, Figuerdov had previously suffered from an unspecified "brain disorder" "manifested by seizures and hospitalizations". Therefore, her "treatment and hospitalization in Mount Sinai was [sic] for a condition that was not incurred on defendant's bus". In support of his contention, counsel appended, inter alia:
(1) A one-page, unsigned excerpt from Figuerdov's Bellevue Hospital record, documenting an out-patient visit on December 12, 1996. According to this sheet, Figuerdov had been diagnosed in 1977 as suffering from a "Complex Partial Seizure" disorder (i.e., epilepsy [Dorland's Medical Dictionary, 28th Edition, at 1503] ), since which time she had been on Dilantin. In November 1996 Figuerdov had experienced three "GTC" seizures (i.e., "generalized tonic-clonic", or "grand mal" convulsions [Dorland's at 1503] ), and the December 12, 1996, "Neuro Clinic" visit to Bellevue was by way of follow-up. The hospital record noted, inter alia, that Figuerdov had a pituitary tumor excised in 1992 following a diagnosis of acromegaly (an enlargement and coarsening of the facial features, hands and feet due to pituitary hypersecretion [Dorland's at 20] ).
(2) An unsworn letter-report from Triboro's orthopedic expert, Dr. Fishman, dated July 21, 1997. Dr. Fishman, who complained that he had not yet received Figuerdov's full medical records, nonetheless gave a detailed outline of the patient's past medical history, including her 1992 pituitary surgery, which he claimed "indicat[ed] that there was a pre-existing problem concerning the brain". Notwithstanding the fact that "epilepsy" was foremost among Figuerdov's diagnoses on all of her medical records (including her date-of-accident Elmhurst Hospital Emergency Room chart), Fishman did not mention it. With specific regard to the head injury and ensuing surgery, Fishman repeatedly declared that he was unqualified to give an opinion--notwithstanding which he repeatedly suggested that Figuerdov's "brain" complaints, like her orthopedic ones, were most likely pre-existing and unrelated to the accident (see, e.g., "Outside of the realm of my specialty I cannot determine causal relationship concerning the head injury and surgery but * * * [t]he claimant seems to have been disabled prior to the above incident according to the records * * * Causal relationship [of the brain surgery] to the above accident cannot be established as it is out of the realm of my specialty and the scant medical records that were provided seem to show serious pre-existing problems not related to this accident").
(3) Figuerdov's Elmhurst Hospital Emergency Room record following the bus accident. In his affirmation, the defendant's counsel stressed that Figuerdov had not been treated at Elmhurst Hospital for a head injury, while ignoring the Emergency Room record entry that Figuerdov reported hitting the right side of her head when she fell on the bus.
(4) Triboro's letters to Rovegno and Taylor, dated September 22, 1997, October 29, 1997, and December 22, 1997, regarding its requests for Figuerdov's records, films and authorizations.
In granting the plaintiff's motion for summary judgment, the Supreme Court observed, inter alia, that Figuerdov's Elmhurst Hospital Emergency Room record expressly noted that the patient hit the right side of her head when she fell on the defendant's bus. Even assuming, then, that Figuerdov had suffered from a prior brain condition, the court concluded that so far as could be ascertained from the record before it, the injury that Figuerdov had sustained on the defendant's bus could qualify as an aggravation of a preexisting condition, which was covered by no-fault insurance, even under the Court of Appeals' most recent ruling in Central General Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 659 N.Y.S.2d 246, 681 N.E.2d 413, as discussed infra.
Accordingly, the defendant's failure to pay or deny Mount Sinai's claim within the 30-day statutory period could not be excused, and the defendant was precluded from interposing any defense to Mount Sinai's action.
We now affirm.
Insurance Law § 5106(a) provides that payment of no-fault first-party benefits "shall be made as the loss is incurred". According to 11 NYCRR 65.15(d)(6), "[i]n lieu of a prescribed application for motor vehicle no-fault benefits submitted by an applicant and a verification of hospital treatment (N.Y.S. Form N-F 4), an insurer shall accept a completed hospital facility form (N.Y.S Form N-F 5) * * * submitted by a provider of health services with respect to the claim of such provider".
"Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained" (...
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