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Mercy Flight Cent., Inc. v. Kondolf

New York City Court, City of Canandaigua

July 2, 2013

James KONDOLF, Defendant.

[973 N.Y.S.2d 523] Robert P. Rothman, PC, James F. Evans, III, Esq., of counsel, for Plaintiff.

Jones and Morris, Sarah Fifield, Esq., of counsel, for Defendants.


In a case of first impression, this court holds that a helicopter air ambulance service may be barred from recovering the cost of its services if the services were not medically necessary.


Mercy Flight Central, Inc. (plaintiff) filed a complaint in October 2010 against James Kondolf (defendant). Plaintiff contends, in words or substance, that defendant owes plaintiff $7,935 for services it provided to defendant on October 15, 2009, when it transported him from Victor, New York to Strong Memorial Hospital in Rochester, New York by helicopter. Defendant filed an answer in December 2010. Plaintiff filed an amended summons and complaint that month, with identical content to the original but printed in a larger font size, in response to defendant's answer. An answer to the amended summons and complaint was filed in January 2011. Defendant contends, in words or substance, that he does not owe the bill to plaintiff for the helicopter lift because he was unconscious at the time of the transport and therefore did not give his consent for it and was not capable of entering into a contract for the ambulance services rendered by plaintiff. He also contends that he should not be held accountable for the cost of the services because they were not medically necessary. Defendant's insurer, Excellus Blue Cross and Blue Shield (BCBS), denied coverage on that basis. Defendant filed an internal appeal with BCBS and received a final adverse determination in January 2010. After defendant lost the internal appeal, an external appeal review agent also determined that the services were not medically necessary. In December 2011 defendant filed a third-party summons and complaint against BCBS. The complaint was dismissed in September 2012 on the ground that defendant had commenced his suit beyond the two-year limit provided in the BCBS contract. After months of conducting discovery, plaintiff and defendant filed motions for summary judgment in February and March 2013, respectively. Oral argument took place on May 23, 2013.


1. Plaintiff's Motion for Summary Judgment. Plaintiff's motion asserts that there is no material fact in dispute that would be sufficient to form a viable defense to its cause of action against defendant, and it seeks judgment against defendant for $7,935 plus interest. Its motion is supported by (1) an affirmation of Attorney James F. Evans, III (Evans); (2) an [973 N.Y.S.2d 524] affidavit by its business development director, Gary H. Morgan (Morgan); (3) an affidavit by K.W. Kelly (Kelly), general manager and chief operating officer of Finger Lakes Ambulance; and (4) an affidavit by Patrick Long (Long), captain of the East Bloomfield-Holcomb Fire Department Emergency Squad.

Evans's affirmation refers to the urgency of the medical situation on the date of the transport, as spelled out in the affidavits of Morgan and Kelly, and asserts that although defendant was conscious at the time of the transport, he would be liable for the cost of the services even if he had been unconscious. Evans cites 22A N.Y. Jur.2d Contracts § 633, which states that a provider of services has the right to restitution when the services are necessary to prevent serious bodily harm to the person receiving them and are offered (1) with the intent to charge money for them, (2) without reason to know the recipient of the services would not consent, and (3) in a situation in which it was impossible to obtain consent or the consent would have been immaterial (in case of youth or mental impairment of the recipient).

Morgan's affidavit explains that plaintiff keeps a patient record for each call it makes and that this record is made up of information gathered from first responders and the examination and treatment provided to the customer upon arrival at the scene by plaintiff's employees. The affidavit and defendant's patient record, attached to the motion as Exhibit E, both indicate that the air ambulance was needed due to the possibility that defendant would need critical care life support during the transport that is not available from the local ground ambulance. The patient record also states that the air transport was needed in order to avoid ground transport delays in getting defendant to a level one trauma center. The patient record states that defendant had fallen down a flight of stairs and was found by his wife with " sonorous respirations" (snoring) and that he had a head laceration. The neurological exam on the patient record indicates that defendant was alert and oriented, that he is " slightly altered but is appropriate," and that there are no noted neurological deficits. The patient record refers to the odor of alcohol on his breath and to defendant's admission that he had used alcohol and drugs. The appropriateness of the transport was confirmed by the Internal Quality Management Program that reviews all of plaintiff's transport decisions. Morgan's affidavit also indicates that the price charged for the transport of defendant was the customary rate for 2009 and was considerably less than charges for comparable services by air ambulances in another state (comparison was made to Arizona, since New York State apparently has not published air ambulance rates since the year 2000.)

Kelly's affidavit describes the procedures used by Finger Lakes Ambulance to record and maintain data from each call it makes. Finger Lakes Ambulance responded to defendant's home on October 15, 2009, and its employees called upon the services of plaintiff. Kelly explains that once it is determined that a patient requires transport to a level one trauma center, air transport is called in if ground transport would take more than 20 minutes to get the patient there. Kelly finds the defendant's patient record " a compelling case for a determination of trauma" because he was unresponsive and gurgling after a fall onto a hard surface, he had a head wound, his combative and disoriented behavior indicated possible concussion, and there was possible substance and alcohol abuse. Defendant's patient chart with Finger Lakes Ambulance indicates that defendant's wife told the ambulance workers that defendant had come home from [973 N.Y.S.2d 525] work upset and very depressed and that he had taken all the Xanax pills he had left and had drunk six beers. Finger Lakes Ambulance's quality assurance department found nothing wrong with the determination of the need for air transport in this case.

Long was the lead medic for the East Bloomfield-Holcomb Fire Department's emergency squad at defendant's home on the day in question (October 15, 2009). Long's affidavit states that defendant's condition required the dispatch of an Advance Life Support ambulance, and therefore Finger Lakes Ambulance Service was called. He believes the use of air transport was appropriate given defendant's fall down the stairs, his head wound, his loss of consciousness, and the possible involvement of alcohol and drugs.

2. Defendant's Motion for Dismissal of the Complaint. Defendant's cross-motion for summary judgment dismissing plaintiff's complaint is supported by (1) the affirmation of his attorney Sarah Fifield, with attached exhibits, and (2) defendant's affidavit, which was filed separately on May 6, 2013. Defendant's motion alleges, in words or substance, that the air transport by plaintiff was excessive and was not medically necessary. This opinion is based on the decision of BCBS, attached to defendant's motion papers as Exhibit A, and the decision of the external review agent MCMC Medical Care Ombudsman Program (MCMC), attached to defendant's motion papers as Exhibit B. Both of these entities held, after examining plaintiff's records, that the air lift of defendant was not medically necessary because defendant's vital signs were stable, there was no gross motor deficit, and defendant was alert and conscious. MCMC also pointed out that the ground ambulance could have gotten defendant to Strong Hospital in 40 minutes, whereas the trip by air did not get him to Strong until 49 minutes after the initial 911 call. Defendant further argues that the decision of MCMC is binding on plaintiff and that plaintiff's only remedy for review of that decision would have been an Article 78 proceeding. Plaintiff would have had to file such a proceeding within four months of the February 19, 2010, decision by MCMC. Various authorities in the statutes and case law are cited for this assertion, including Public Health Law § 4914(b)(4)[1], holding that state-mandated external reviews of health insurers' denials of coverage are binding and are admissible in any subsequent court proceeding. Finally, defendant argues that plaintiff is collaterally estopped from bringing this action because the matter was fully litigated in the external review by MCMC.

Defendant's affidavit attests to the complete accuracy of the statement of facts contained in his attorney's affirmation. He adds that he is shocked that plaintiff would sue him personally after his insurer denied coverage and points to the incongruity of his paying health insurance premiums to have coverage for necessary medical expenses and then also being expected to pay for services his insurer can avoid paying because it considers those services medically unnecessary. He states that he never consented to or requested the use of air transport and that, per the ...

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