December 19, 2017

Queens Vil. Med. Care, P.C. v Government Employees Ins. Co. (2017 NY Slip Op 51799(U))

https://www.beynensonlaw.com/case-law/queens-vil-med-care-p-c-v-government-employees-ins-co-2017-ny-slip-op51799u/

Court: Appellate Term, Second Department
Decided: December 19, 2017
Citation: 2017 NY Slip Op 51799(U) · 58 Misc 3d 134(A)
Posture: Trial
Issues: Trial and evidence Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Queens Vil. Med. Care, P.C. v Government Employees Ins. Co., 58 Misc 3d 134(A), 2017 NY Slip Op 51799(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 expert medical witness's specialty affects the weight of the testimony, not the witness's competency to testify as an expert. At a nonjury trial limited to medical necessity, the Civil Court precluded the insurer's expert because the expert specialized in physical medicine and rehabilitation, while the peer review author was an orthopedic surgeon reviewing from an orthopedic surgery standpoint. The Civil Court then directed a verdict for the provider. Following Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of NY, the Appellate Term, Second Department, concluded that the insurer's witness should have been permitted to testify, reversed the judgment, and remitted the matter for a new trial.

Reported in New York Official Reports at Queens Vil. Med. Care, P.C. v Government Employees Ins. Co. (2017 NY Slip Op 51799(U))

[*1]

Queens Vil. Med. Care, P.C. v Government Employees Ins. Co.

2017 NY Slip Op 51799(U) [58 Misc 3d 134(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2015-325 Q C

Queens Village Medical Care, P.C., as Assignee of Louis Dominique, Respondent,
against
Government Employees Insurance Company, Appellant.

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered November 10, 2014. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,671.

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. Plaintiff moved to preclude defendant’s expert medical witness from testifying on the ground that his specialty is physical medicine and rehabilitation, while the author of the peer report is an orthopedic surgeon who stated in the peer review report that he was conducting the review from an orthopedic surgery standpoint. The court precluded the witness, granted plaintiff’s application for a directed verdict and awarded judgment in favor of plaintiff in the principal sum of $2,671.

An expert medical witness’s specialty goes to the weight to be given to the testimony and not to the witness’s competency to testify as an expert (see Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of NY, 54 Misc 3d 129[A], 2016 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Thus, defendant’s witness should have been permitted to testify.

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

Held the insurer's medical expert was wrongly precluded at a trial limited to medical necessity, because a witness's specialty goes to the weight of the testimony, not competency, and ordered a new trial.

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.

Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of N.Y. (2016 NY Slip Op 51815(U)) FollowedThe insurer's medical-necessity defense failed at trial because its peer-review doctor's testimony was found not credible.

Similar decisions

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.
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.
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.