December 19, 2017

Jamaica Med. Plaza, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51837(U))

https://www.beynensonlaw.com/case-law/jamaica-med-plaza-p-c-v-geico-gen-ins-co-2017-ny-slip-op51837u/

Court: Appellate Term, Second Department
Decided: December 19, 2017
Citation: 2017 NY Slip Op 51837(U) · 58 Misc 3d 138(A)
Posture: Trial
Issues: Trial and evidence Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Jamaica Med. Plaza, P.C. v GEICO Gen. Ins. Co., 58 Misc 3d 138(A), 2017 NY Slip Op 51837(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

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

An insurer's substitute medical expert may testify on lack of medical necessity within the grounds stated in the original peer review report. At a nonjury trial on assigned no-fault benefits, medical necessity was the sole issue. The Civil Court precluded testimony from the insurer's expert, who had not prepared the peer review report underlying the denial, and granted the provider a directed verdict. The expert should have been permitted to offer an opinion on medical necessity, with testimony limited to the basis for denial set forth in the original report. The Appellate Term, Second Department, reversed the provider's judgment and remitted the matter for a new trial.

Reported in New York Official Reports at Jamaica Med. Plaza, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51837(U))

[*1]

Jamaica Med. Plaza, P.C. v GEICO Gen. Ins. Co.

2017 NY Slip Op 51837(U) [58 Misc 3d 138(A)]

Decided on December 19, 2017

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1569 K C

Jamaica Medical Plaza, P.C., as Assignee of Ana Casiano, Respondent,
against
GEICO General Insurance Company, Appellant.

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Moshe D. Fuld, P.C. (David Karp, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered April 4, 2013. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $4,937.42.

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 at issue. The Civil Court precluded the testimony of defendant’s expert witness 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 $4,937.42.

Defendant’s expert medical witness, who was not the expert who had prepared the peer review report upon which defendant’s denial of the claim at issue had been based, should have been permitted to testify as to her opinion regarding the lack of medical necessity of the services at issue in this case, which testimony would be limited to the basis for the denial as set forth in the original peer review report (see 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]; Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY [*2]Slip Op 50349[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017

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 expert who did not prepare the peer review should have been permitted to testify on lack of medical necessity, limited to the peer review's basis for denial.

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

Promed Orthocare Supply, Inc. v Geico Ins. Co. (2017 NY Slip Op 51264(U))An insurer may prove lack of medical necessity at trial through an expert who did not prepare the underlying peer review report.
Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co. (2012 NY Slip Op 50349(U))An insurer's trial expert may testify on medical necessity without having authored the peer review, within the original report's denial basis.

Similar decisions

North Am. Partners In Anesthesia, LLP v GEICO Gen. Ins. Co. (2019 NY Slip Op 50683(U))An insurer's expert may testify to lack of medical necessity without having prepared the underlying peer review report.
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.
Staten Is. Advanced Surgical Supply v GEICO Ins. Co. (2017 NY Slip Op 51895(U))An insurer's medical expert may testify to lack of medical necessity without having authored the peer review underlying the denial.
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.
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.