Country-Wide Ins. Co. v Gotham Med., P.C. (2017 NY Slip Op 07538) was decided on October 26, 2017 by the Appellate Division, First Department. The issue in this case was whether a physicians’ refusal to answer questions at an examination under oath about his compliance with a consent decree with the New York State Office of Professional Responsibility formed a sufficient basis to deny No Fault claims submitted by the physician’s practice. The Defendant argued that questions about the physician’s compliance with the OPMC order were improper because the order was confidential relying on Public Health Law § 230(17), which provides that where an investigation of suspected professional misconduct by a physician reveals evidence insufficient to constitute misconduct but reasonable cause exists to believe the physician is unable to practice medicine with reasonable skill and safety, the physician may be ordered to have his or her practice monitored by another physician approved by OPMC, and any such order shall be kept confidential.

The Appellate Division rejected this argument finding the physician entered into the consent agreement and order in which he did not contest the charge of fraudulent practice of medicine brought against him. The doctor agreed to a penalty of a 12-month suspension of his license to practice medicine, a stay of the suspension, and, pursuant to Public Health Law § 230-a, a 60-month term of probation, of which a monitor of his practice was only one condition.

In a unanimous opinion, the Appellate Division stated, “The consent agreement and order provides that any medical practice in violation of the term permitting Scheer to practice only when monitored “shall constitute the unauthorized practice of medicine.” An unlicensed health care provider is ineligible to receive no-fault reimbursement (11 NYCRR 65-3.16[a][12]), and an insurer may make a good faith determination that a medical provider assignee seeking no-fault benefits is ineligible to receive such benefits (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 322 [2005]).