BROADCASTS.com

b'

State Farm Obtains Injunction Against Doctor to Stop Fraudulent No Fault\\n Accident Claims\\n\\nIn State Farm Mutual Automobile Insurance Company, State Farm Fire and \\nCasualty Company v. Herschel Kotkes, M.D., P.C., Herschel Kotkes, M.D., \\nNo. 22-cv-03611-NRM-RER, United States District Court, E.D. New York \\n(July 13, 2023) Plaintiffs, various State Farm insurers sued Herschel \\nKotkes and Herschel Kotkes, M.D., P.C. (\\u201cKotkes\\u201d), alleging that Dr. \\nKotkes defrauded State Farm by submitting hundreds of fraudulent bills \\nfor no-fault insurance charges on behalf of insured patients who were \\ninvolved in automobile accidents.\\n\\nState Farm alleged common law fraud and unjust enrichment, seeking \\ndamages for benefits paid under no-fault insurance policies to Kotkes. \\nState Farm also sought a declaratory judgment establishing that, among \\nother things, it is not obligated to pay unpaid, pending claims \\nsubmitted by Kotkes.\\n\\nBACKGROUND\\n\\nAn insured may assign their claim to their provider, who then bills the \\ninsurers directly.\\n\\nFactual Allegations\\n\\nDefendants are Dr. Herschel Kotkes (\\u201cKotkes\\u201d) and his medical practice, \\nHerschel Kotkes, M.D., P.C. Kotkes is a pain management specialist, \\nwhose practice includes treating insureds who have been involved in \\nautomobile accidents. The insureds assign their policies to Kotkes, who \\nbills State Farm for the treatment purportedly rendered.\\n\\nThe random sample of eighty-six patients also reveals that Kotkes \\nprovided the same prognosis for 98% of those he treated and recommended \\nthe same combination of treatment methods for nearly all patients.\\n\\nCOMMON LAW FRAUD\\n\\nUnder New York law, to state a claim for fraud, a plaintiff must \\ndemonstrate\\n\\n1 a material misrepresentation or omission of fact;\\n2 which the defendant knew to be false;\\n3 which the defendant made with the intent to defraud;\\n4 upon which the plaintiff reasonably relied; and\\n5 which caused injury to the plaintiff.\\n\\nState Farm points to Kotkes\'s own testimony, from an examination under \\noath in a state court collection action, where he testified, for one, \\nthat he does not believe that certain procedures are medically valuable,\\n but that he performs them as a matter of course. Kotkes also testified \\nthat it is his practice to perform a percutaneous discectomy and an \\nIDET-two mutually exclusive procedures-at the same time and using the \\nsame needle.\\n\\nCommon law fraud is sufficiently pled and Kotkes\'s motion to dismiss the\\n common law fraud count was denied.\\n\\nMOTION FOR A PRELIMINARY INJUNCTION\\n\\nState Farm alleges that, as of March 23, Kotkes initiated 103 \\narbitrations and 95 state court lawsuits seeking payment on claims that \\nState Farm has refused to pay since uncovering the alleged fraudulent \\nscheme and initiating the instant federal lawsuit. As of March 24, 2023,\\n approximately $1,188,841.32 in unpaid claims was at issue in pending \\nstate court litigation and arbitrations, and $1,787,989.98 of Kotkes\'s \\nbilled-unpaid amount was not yet the subject of pending collections \\nlitigation or arbitration.\\n\\nNew York courts routinely stay collection actions pending declaratory \\njudgment proceedings. Accordingly, State Farm\'s request that the USDC \\nstay pending no-fault collection actions in state court was granted.\\n\\nState Farm\'s motion for a preliminary injunction was granted in full. \\n\\nZALMA OPINION\\n\\nBecause insurance fraud - especially with regard to individual small \\namounts - the only means of deterring or defeating insurance fraud \\nrelating to no-fault insurance claims assigned to less than scrupulous \\nhealth care providers is to sue the providers for fraud. State Farm \\nshould be commended for its proactive work against Dr. Kotkes and was \\nproperly provided an injunction stopping further claims while litigating\\n the declaratory relief and fraud suit. The evidence appears \\noverwhelming and I look forward to reading about the results at trial.\\n\\n(c) 2023 Barry Zalma & ClaimSchool, Inc.