Opinion
41142KCV2001.
Decided April 8, 2004.
The instant action was commenced against Defendant insurance company to recover compensation for medical services rendered to Defendant's insureds. At trial, evidence was produced as to the validity of Plaintiff's notice of claim and Defendant's timely denial thereof. Defendant denied the claim on the basis that the treatment was not medically necessary, which remains the only issue to be decided by the jury.
During conference with the parties regarding the instructions that are to be given to the jury, Plaintiff requested that the court instruct the jury that the Defendant has the burden of proof that the treatment claimed was not medically necessary. Defendant objected to the jury being given such a specific charge. The court reserved decision on the issue, and this opinion represents the conclusion of the court.
There is only one appellate decision in this state dealing with the burden of proof for first party benefits under New York's No Fault Law, 11 NYCRR65-1.1(d). In that case, Choicenet Chiropractic P.C. a/a/o Ketevan Palagashvila v. Allstate Insurance Company, 2003 N.Y. Slip Op. 50672U, 2003 N.Y. Misc. Lexis 314 (App. Term 2nd Dept.), the court stated that the defendant insurer has the burden of proof with regard to the affirmative defense of lack of medical necessity. This decision has been cited as controlling by several courts in this judicial department, Allstate Medical Office, P.C. a/a/o Charles Harvey v. Allstate Insurance Co., 196 Misc. 2d 268, 764 N.Y.S. 2d 341 (Kings County 2003), Fifth Avenue Pain Control Center a/a/o Gladys Quintero v. Allstate Insurance Co. Et al., 2003 N.Y. Slip Op. 50594U, 2003 N.Y. Misc. Lexis 136, Elm Medical, P.C. a/a/o Tamara Feit v. American Home Assurance Co., 2003 N.Y. Slip Op. 51357U, 2003 N.Y. Misc. Lexis 1337.
With no other higher court decision to use for guidance, this court must adhere to these precedents and agree that, for the moment, under the law of this judicial department the defendant insurer has the burden of proof with respect to the lack of medical necessity as the basis for denying a claim for medical benefits under New York's No Fault Law.
Until Neurological Services, P.C. v. Travelers Insurance, Index No. 51259/1998 (Queens County) (Agate, J.), no court in this state had instructed a jury as to the burden of proof regarding medical necessity. Fifth Avenue Pain Control Center a/a/o Gladys Quintero v. Allstate Insurance Co., op cit. As with the Neurological Services, P.C. case, the circumstances of this matter require the court in the instant case to compose appropriate instructions for the jury.
According to the State of New York 25th Annual Report of the Chief Administrator, covering the statistics for calendar year 2002, which are the most recent statistics available, 24% of all of the cases filed in the Supreme Court were based on motor vehicle accidents, and 35% of all cases filed in the City and District Courts were similarly based. No official statistics are available for the Civil Court for the City of New York. However, despite this overwhelming amount of motor vehicle litigation, the New York Pattern Jury Instructions Civil, 3d ed. (2004), do not provide any specific instruction on this issue. Therefore, it behooves this court to design its own instructions based on the current status of the law in this judicial department.
Borrowing from Judge Agate's instructions noted above, the court determines that the appropriate instruction would be as follows, taking the general provisions of PJI 1:60 and inserting the standard enunciated in the Choicenet decision:
To say that a party has the burden of proof on a particular issue means that, considering the evidence in the case, the party's claim on that issue must be established by a fair preponderance of the credible evidence. The credible evidence means the testimony or exhibits that you find worthy of belief. A preponderance means the greater part of the evidence. That does not mean the greater number of witnesses or the greater length of time taken by either side. The phrase preponderance of the evidence refers to the quality of the evidence, its weight, and the effect that it has on your minds. In order for a party to prevail on an issue on which he or she has the burden of proof, the evidence that supports his or her claim on that issue must appeal to you as more nearly representing what happened than the evidence opposed to it. If it does not or if it weighs so
evenly that you are unable to say that there is a preponderance on either side,you must decide the question against the party who has the burden of proof and in favor of the opposing party. In this matter, plaintiff claims that it provided medical services to plaintiff's assignor which defendant should be responsible for paying under the terms of the contract between the parties. Defendant claims that it denied plaintiff's claim because the treatment and evaluation were not medically necessary. Defendant has the burden of proving that the treatment rendered by plaintiff was not medically necessary. If you find that defendant proved by a fair preponderance of the evidence that the treatment rendered by plaintiff was not medically necessary, then you must return a verdict for defendant. However , if you find that defendant failed to prove by a fair preponderance of the credible evidence that the treatment was not medically necessary, then you must return a verdict for plaintiff.
At conference, an objection was posited to these proposed instructions based on the presumptive prejudice against the defendant that this instruction might raise in the minds of the jury. However, such explicit instructions on the burden of proof in specific situations are common in the Pattern Jury Instructions, the official guide for jurists in this state.
In many instances the Pattern Jury Instructions provide instructions in which the jury is told that a defendant bears the burden of proof. Some examples of such instructions would include, inter alia, PJI 2:149, in which the jury is instructed that the defendant bears the burden of proof in a medical malpractice action where the defense is based on the statute of limitations, PJI 2:152, in which a defendant attorney has the burden of proving that affirmative defenses raised in the underlying action would have defeated the plaintiff's claims in a legal malpractice action, and PJI 4:10, where the defendant in a contractual claim alleging fraud in the execution has the burden of proving that it did not make any misstatement.
Based on the foregoing, the court holds that the jury may be instructed as to Defendant insurer's burden of proving that Plaintiff's treatment was not medically necessary when it denied a claim for medical treatment based on New York's No Fault Law.