December 19, 2011

Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 52300(U))

https://www.beynensonlaw.com/case-law/park-slope-med-surgical-supply-inc-v-progressive-ins-co-2011-ny-slip-op52300u/

Court: Appellate Term, Second Department
Decided: December 19, 2011
Citation: 2011 NY Slip Op 52300(U) · 34 Misc 3d 129(A)
Posture: Trial
Issues: Trial and evidence Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 129(A), 2011 NY Slip Op 52300(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 medical necessity, limited to the denial grounds in the original peer review report. The Appellate Term, Second Department, reversed the provider's judgment after a nonjury trial and remitted for a new trial. Civil Court had effectively precluded the insurer's expert and directed a verdict for the provider. The expert should have been permitted to offer an opinion on the supplies' medical necessity despite not having authored the peer review. The earlier order denying the provider summary judgment made no explicit or implicit finding under CPLR 3212 (g) establishing facts for all purposes, so the provider must introduce evidence establishing its case at the new trial.

Reported in New York Official Reports at Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 52300(U))

[*1]

Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co.

2011 NY Slip Op 52300(U) [34 Misc 3d 129(A)]

Decided on December 19, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : GOLIA, J.P., WESTON and RIOS, JJ
2010-2115 Q C.

Park Slope Medical and Surgical Supply, Inc. as Assignee of IRA FRANKLIN, Respondent,
against
Progressive Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 6, 2010. The judgment, after a nonjury trial, awarded plaintiff the total sum of $1,898.84.

ORDERED that the judgment is reversed, without 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 Civil Court essentially 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. Defendant’s expert medical witness, who was not the expert who had prepared the peer review report upon which defendant’s denial of the subject claim was based, should have been permitted to testify as to her opinion as to the medical necessity of the supplies 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 (Radiology Today, P.C. v Progressive Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51724[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52454[U] [App Term, 2d & 11th Jud Dists 2007]; see also Psychology YM, P.C. v Geico Gen. Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51316[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Therefore, a new trial is required.

We note that, contrary to plaintiff’s argument below and on appeal, the April 10, 2008 order denying plaintiff’s motion for summary judgment did not make an explicit or implicit CPLR 3212 (g) finding that there were any facts that had been established for all purposes in the action (see Vitality Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 17 Misc 3d 34 [App Term, 2d & 11th Jud Dists 2007]). Therefore, upon the new trial, plaintiff will be required to introduce evidence to establish its case (id.).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial in accordance with this decision. [*2]

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: December 19, 2011

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 trial court erred in precluding the insurer's expert, who had not written the peer review, from testifying on medical necessity limited to the report's basis, 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.

Radiology Today, P.C. v Progressive Ins. Co. (2011 NY Slip Op 51724(U)) FollowedThe insurer's expert should have been permitted to testify although that expert did not prepare the peer review underlying the denial.
Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 52454(U)) FollowedAn insurer may call a substitute medical expert, subject to cross-examination, to address the original peer reviews' rationale.
Psychology YM, P.C. v Geico Gen. Ins. Co. (2011 NY Slip Op 51316(U))The insurer's peer reviewer was improperly precluded from testifying because the written report was not in admissible form.

Cited by

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.
Atlantic Radiology Imaging, P.C. v GEICO (2013 NY Slip Op 52256(U))A substitute peer-review expert may testify at trial within the original report's grounds, even if that report is not admitted.

Similar decisions

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.
Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 51771(U))The insurer's timely denial and affirmed peer review raised a triable issue of medical necessity for the supplied equipment.
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.
Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50441(U))The provider's physician affidavit raised a triable issue of medical necessity sufficient to defeat the insurer's cross motion for summary judgment.
Park Slope Med. v Praetorian Ins. Co. (2013 NY Slip Op 50761(U))The provider's medical affirmation failed to rebut the insurer's peer review finding that the supplies were superfluous to existing therapy.