In deciding whether or not to sue there are three important considerations, and without all three a lawsuit generally cannot succeed: (1) there must be a liability (or a basis for getting relief); (2) there must be damages (and under New York law damages are sometimes not easy to prove and may require expert testimony unless it is plain and easy to calculate); and (3) there must be a “pocket” or source of funds from the parties who are liable for the damages, to pay a judgment.
Many people commence lawsuits without having all three factors in mind. If you don’t have at least two of the three factors clearly defined in your mind — and at least a reasonable chance that the third factor exists — usually the lawsuit should not be brought.
We represent a significant number of doctors in our practice. Very often the question arises of exactly who is engaged in the practice of medicine? This sounds simple on its face, but there are many issues in this area that have been unresolved or that have resulted in conflicting opinions by various courts interpreting New York law.
- Is a doctor who runs a medical office but does not see patients practicing medicine?
- Is a doctor for an insurance company who examines patients to see if they qualify for life insurance practicing medicine?
- Is a doctor who reviews medical charts for insurance companies to determine whether services the patient received from his/her own doctor were medically necessary, practicing medicine?
- Is a doctor who teaches at medical school practicing medicine?
- Is a doctor who testifies as an expert in various types of cases, including medical malpractice and personal injury cases, practicing medicine?
These questions become material under New York law because doctors who are not practicing medicine may, under many circumstances, not be able to collect from insurance companies for services rendered, even though those services were performed under their supervision by others.
Many insurance companies have made the argument that doctors are not engaged in the practice of medicine to avoid the obligation to pay for medical services that were properly rendered by licensed doctors under the employ of the billing doctor, who saw no patients.
There was a recent case in Staten Island where the jury had to decide if the doctor was engaged in the practice of medicine, even though he saw no patients but supervised other doctors he employed who actually rendered the services. The jury found he was not, which enabled insurance companies to avoid paying millions of dollars for the otherwise-valid services that were rendered by licensed doctors employed by the practice.
There are so many factors to consider when trying to determine if you have a basis for a lawsuit, they can’t all be listed here. I do address more considerations in my article, When and Where to Litigate. But if you think you or your business has been damaged by someone’s actions, contact us to help you decide your next steps.
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