May 3, 2019

North Am. Partners In Anesthesia, LLP v GEICO Gen. Ins. Co. (2019 NY Slip Op 50683(U))

https://www.beynensonlaw.com/case-law/north-am-partners-in-anesthesia-llp-v-geico-gen-ins-co-2019-ny-slip-op50683u/

Court: Appellate Term, Second Department
Decided: May 3, 2019
Citation: 2019 NY Slip Op 50683(U)
Posture: Trial
Issues: Trial and evidence Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

North Am. Partners In Anesthesia, LLP v GEICO Gen. Ins. Co., 2019 NY Slip Op 50683(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

An insurer's expert may testify to lack of medical necessity without having prepared the underlying peer review report. At a nonjury trial, the Civil Court excluded the substitute expert's testimony as hearsay and directed a verdict for the provider. The Appellate Term, Second Department, reversed the judgment and ordered a new trial. Following Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., the expert's testimony must remain within the denial's basis as stated in the peer review report. The provider must object if testimony exceeds that basis and, if necessary, produce the report. The insurer cannot use the report to prove lack of medical necessity or impermissibly bolster its expert's testimony.

Reported in New York Official Reports at North Am. Partners In Anesthesia, LLP v GEICO Gen. Ins. Co. (2019 NY Slip Op 50683(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

North American Partners in Anesthesia, LLP, as Assignee of Jose Maravilla, Respondent,
against
GEICO General Insurance Co., Appellant.

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. The Odierno Law Firm, P.C., for respondent (no brief filed).

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered November 28, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $243.09.

ORDERED that, on the court’s own motion, the notice of appeal from the oral decision made on November 17, 2015 is deemed a premature notice of appeal from the judgment entered November 28, 2016 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the sole issue was the medical necessity of the services in question. The Civil Court precluded the testimony of defendant’s expert witness, who did not prepare the underlying peer review report, on the ground that such testimony would be hearsay, and granted plaintiff’s motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered in favor of plaintiff in the principal sum of $243.09.

Defendant’s expert witness should have been permitted to testify as to his opinion regarding the lack of medical necessity of the services at issue (see e.g. Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). While the expert witness’s testimony should be limited to the basis for the denial as set forth in the peer review report (see id.), it is plaintiff’s burden to make an appropriate objection in the event the testimony goes beyond the basis for the denial and, if necessary, produce the peer review report (see Staten Is. Advanced Surgical Supply v GEICO Ins. Co., 58 Misc 3d 143[A], 2017 NY Slip Op 51895[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Promed Orthocare Supply, Inc. v Geico Ins. Co., 57 Misc 3d 135[A], 2017 NY Slip Op 51264[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). We note that an insurer cannot use a peer review report to prove its defense of lack of medical necessity or to impermissibly bolster its expert’s testimony (see e.g. Promed Orthocare Supply, Inc., 57 Misc 3d 135[A], 2017 NY Slip Op 51264[U]; A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Trial ruling on burden or admissibility of the insurer's proof; matter sent back without a finding

Ordered a new trial because the insurer's non-author expert should have been allowed to testify on lack of medical necessity, limited to the peer review's basis, with the provider bearing the burden to object to testimony beyond it.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 32 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co. (2012 NY Slip Op 50349(U)) FollowedAn insurer's trial expert may testify on medical necessity without having authored the peer review, within the original report's denial basis.
Staten Is. Advanced Surgical Supply v GEICO Ins. Co. (2017 NY Slip Op 51895(U)) FollowedAn insurer's medical expert may testify to lack of medical necessity without having authored the peer review underlying the denial.
Promed Orthocare Supply, Inc. v Geico Ins. Co. (2017 NY Slip Op 51264(U)) FollowedAn insurer may prove lack of medical necessity at trial through an expert who did not prepare the underlying peer review report.
A-Quality Med. Supply v GEICO Gen. Ins. Co. (2013 NY Slip Op 23088)An insurer's peer review report is inadmissible at trial to prove lack of medical necessity.

Similar decisions

Nova Chiropractic Servs., P.C. v GEICO Gen. Ins. Co. (2018 NY Slip Op 51688(U))An insurer's medical expert may testify about lack of medical necessity even if another expert prepared the peer review report.
Main St. Medcare, P.C. v GEICO Gen. Ins. Co. (2019 NY Slip Op 50686(U))The provider's directed verdict on medical necessity was reversed after the insurer's substitute expert was excluded as hearsay.
Jamaica Med. Plaza, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51837(U))An insurer's substitute medical expert may testify on lack of medical necessity within the grounds stated in the original peer review report.
Complete Chiropractic, P.C. v GEICO Gen. Ins. Co. (2019 NY Slip Op 50684(U))The provider's directed verdict on medical necessity was reversed after the insurer's substitute expert was excluded as hearsay.
Trimed Med. Supply, Inc. v GEICO Ins. Co. (2017 NY Slip Op 51957(U))An insurer's trial expert may differ from the peer reviewer, but testimony must remain within the original report's denial grounds.