May 14, 2013

Eagle Surgical Supply, Inc. v GEICO Ins. Co. (2013 NY Slip Op 50854(U))

https://www.beynensonlaw.com/case-law/eagle-surgical-supply-inc-v-geico-ins-co-2013-ny-slip-op50854u/

Court: Appellate Term, Second Department
Decided: May 14, 2013
Citation: 2013 NY Slip Op 50854(U) · 39 Misc 3d 146(A)
Posture: Trial
Outcome: Insurer prevailed
Issues: Trial and evidence Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Eagle Surgical Supply, Inc. v GEICO Ins. Co., 39 Misc 3d 146(A), 2013 NY Slip Op 50854(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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.

A peer review report is inadmissible at trial to prove lack of medical necessity, which must be resolved through medical expert testimony. After a nonjury trial limited to medical necessity, the Civil Court dismissed the provider's claims for medical supplies based on the insurer's doctor's testimony. The provider challenged admission of the peer review report and underlying medical records but did not challenge the substance of that testimony. Following A-Quality Med. Supply v GEICO Gen. Ins. Co., the Appellate Term, Second Department, concluded that the insurer properly established lack of medical necessity through its expert witness. Admission of the report did not warrant reversal, and the judgment for the insurer was affirmed.

Reported in New York Official Reports at Eagle Surgical Supply, Inc. v GEICO Ins. Co. (2013 NY Slip Op 50854(U))

[*1]

Eagle Surgical Supply, Inc. v GEICO Ins. Co.

2013 NY Slip Op 50854(U) [39 Misc 3d 146(A)]

Decided on May 14, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 14, 2013

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

PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2011-2601 K C.

Eagle Surgical Supply, Inc. as Assignee of TRISTAN JORIS, Appellant, —
against
GEICO Insurance Co., Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Helen C. Sturm, J.H.O.), entered July 26, 2011. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, limited to defendant’s defense of lack of medical necessity. Following the trial, the Civil Court found that defendant’s doctor’s testimony had demonstrated that the supplies in question were not medically necessary. Consequently, a judgment was entered in favor of defendant dismissing the complaint.

On appeal, plaintiff does not challenge the substance of defendant’s expert witness’s testimony. Instead, plaintiff objects to the admission into evidence of a peer review report and the underlying medical records. At a trial on the issue of medical necessity, a peer review report is not admissible to prove the lack of medical necessity. Rather, that issue is to be resolved based upon the testimony given by the medical experts (see A-Quality Med. Supply v GEICO Gen. Ins. Co., ____ Misc 3d ____, 2013 NY Slip Op 23088 [App Term, 2d, 11th & 13th Jud Dists 2013]). In this case, defendant properly established the lack of medical necessity at trial through the testimony of its expert witness. Thus, plaintiff’s contention that reversal is warranted because the court admitted the peer review report into evidence lacks merit. [*2]

The remainder of plaintiff’s objections similarly lack merit (see Park Slope Med. & Surg. Supply, Inc. v Travelers, 37 Misc 3d 19, 22-23 [App Term, 2d, 11th & 13th Jud Dists 2012]; Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the judgment is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 2013

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: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Affirmed dismissal after trial because the insurer's expert testimony established lack of medical necessity of the supplies; admitting the peer review report, though not admissible to prove lack of necessity, did not warrant reversal.

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, 315 (this one included) are in the same category.

Cited in this decision

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

A-Quality Med. Supply v GEICO Gen. Ins. Co. (2013 NY Slip Op 23088) FollowedAn insurer's peer review report is inadmissible at trial to prove lack of medical necessity.
Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co. (2012 NY Slip Op 22200)Medical records supporting a peer review are admissible to show information conveyed to the insurer rather than the truth of their contents.
Alrof, Inc. v Progressive Ins. Co. (2011 NY Slip Op 21419)An insurer need not prove medical records reliable when its expert assumes their contents true in disputing medical necessity.
Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (2010 NY Slip Op 50987(U))The insurer established premature claims for unanswered verification and lack of medical necessity for the remaining claims.

Cited by

Alev Med. Supply, Inc. v Government Employees Ins. Co. (2014 NY Slip Op 50130(U))The provider's evidentiary objections failed, and dismissal of the challenged claims for lack of medical necessity was affirmed.

Similar decisions

Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50534(U))The insurer's affirmed peer review established that the supplies were medically unnecessary, and the provider submitted no contrary evidence.
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.
Alev Med. Supply, Inc. v Government Empls. Ins. Co. (2013 NY Slip Op 51096(U))A peer review report is inadmissible at trial to prove lack of medical necessity; that issue is resolved through medical expert testimony.
Quality Health Prods. v GEICO Gen. Ins. Co. (2012 NY Slip Op 50415(U))The insurer's unrebutted peer review report supplied a factual basis and medical rationale for denying the supplies as medically unnecessary.
All Borough Group Med. Supply, Inc. v Unitrin Advantage Ins. Co. (2014 NY Slip Op 50462(U))Peer review reports are inadmissible to prove lack of medical necessity at trial, but their admission did not require reversal here.