May 6, 2013
Kew Garden Imaging v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50748(U))
https://www.beynensonlaw.com/case-law/kew-garden-imaging-v-state-farm-mut-auto-ins-co-2013-ny-slip-op50748u/
- Decided
- May 6, 2013
- Citation
- 2013 NY Slip Op 50748(U) · 39 Misc 3d 140(A)
- Posture
- Trial
- Legal questions
- Lack of medical necessity (see the maps)
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.
Reported in New York Official Reports at Kew Garden Imaging v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50748(U))
| Kew Garden Imaging v State Farm Mut. Auto. Ins. Co. |
| 2013 NY Slip Op 50748(U) [39 Misc 3d 140(A)] |
| Decided on May 6, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2010-3304 K C.
against
State Farm Mutual Automobile Ins. Co., Appellant.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 18, 2010. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,819.10.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.
In this action by a provider to recover assigned first-party no-fault benefits, the sole issue for trial, pursuant to a stipulation, was, for all but one claim, whether the services at issue were medically necessary. The Civil Court precluded defendant’s medical witnesses from testifying on the ground that those doctors could not testify as to the contents of the medical records they had reviewed in preparing their peer reviews.
As defendant’s doctors should have been permitted to testify (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [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 [*2]Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), a new trial is required.
We note that the trial also involved one claim for $60.70, to which defendant had apparently raised a workers’ compensation fee schedule defense. While it appears that defendant’s counsel may have meant to concede this claim at trial, the record is not clear. Thus, we remit the entire case for a new trial.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: May 06, 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.
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
Reversed judgment for the provider and ordered a new trial because the trial court wrongly precluded the insurer's peer review doctors from testifying about the medical records they reviewed.
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 Travelers Ins. Co. (2012 NY Slip Op 22200) FollowedMedical 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) FollowedAn 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)) FollowedThe insurer established premature claims for unanswered verification and lack of medical necessity for the remaining claims.
Cited by
- Quality Health Prods., Inc. v Travelers Indem. Co. (2014 NY Slip Op 51231(U))Medical necessity experts need not establish the truth of records not offered to prove the assignors' injuries or treatment.
Similar decisions
- Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 52300(U))An insurer's substitute medical expert may testify on medical necessity, limited to the denial grounds in the original peer review report.
- Metropolitan Med. Supplies, LLC v GEICO Ins. Co. (2012 NY Slip Op 51490(U))An insurer's medical expert may testify without having prepared the peer review, but must stay within the denial's stated basis.
- Greater NY Med. Care, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51849(U))The provider's trial judgment was reversed because it contradicted findings that the insurer proved lack of medical necessity without rebuttal.
- Radiology Today, P.C. v Progressive Ins. Co. (2011 NY Slip Op 51724(U))The insurer's expert should have been permitted to testify although that expert did not prepare the peer review underlying the denial.
- Radiology Today, P.C. v Geico Ins. Co. (2017 NY Slip Op 51768(U))An insurer may present substitute expert testimony on medical necessity without admitting the peer review report for its truth.