July 13, 2009
Bronx Expert Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 51475(U))
https://www.beynensonlaw.com/case-law/bronx-expert-radiology-p-c-v-new-york-cent-mut-fire-ins-co-2009-ny-slip-op51475u/
- Decided
- July 13, 2009
- Citation
- 2009 NY Slip Op 51475(U) · 24 Misc 3d 134(A)
- Posture
- Trial
- Later treatment
- Distinguished in 1 later decision (see Cited by)
- 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 Bronx Expert Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 51475(U))
| Bronx Expert Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2009 NY Slip Op 51475(U) [24 Misc 3d 134(A)] |
| Decided on July 13, 2009 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570119/08.
against
New York Central Mutual Fire Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Sharon A.M. Aarons, J.), entered November 28, 2007, which, upon preclusion of defendant’s expert testimony, directed a verdict in favor of plaintiff.
Per Curiam.
Appeal from order (Sharon A.M. Aarons, J.), entered November 28, 2007, is deemed an appeal from a judgment (same court and Judge), entered August 18, 2008, and so considered, judgment reversed, with $25 costs, and matter remanded for further proceedings.
In this action to recover first party no-fault benefits, defendant’s medical expert should have
been permitted to testify, since the expert witness “would be subject to full cross-examination
and his testimony as to lack of medical necessity would be limited to the basis for denial set forth
in the original peer review report” (Home Care Orthos. Med. Supply v American Mfrs. Mut. Ins. Co., 14
Misc 3d 139[A], 2007 NY Slip Op 50302[U] [2007]; see also Spruce Med. and Diagnostic, P.C. v Lumbermen’s Mut. Cas.
Co., 15 Misc 3d 143[A], 2007 NY Slip Op 51104[U] [2007]). Nor is defendant’s expert
precluded from testifying because his opinion may have been based, at least in part, on his
review of the assignor’s medical records prepared by plaintiff (Home Care Orthos. Med. Supply v
American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [2007])
or medical records prepared by other physicians and submitted to defendant, relating to treatment
provided to the assignor for injuries arising from the same motor vehicle accident.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 13, 2009
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 a directed verdict for the provider, holding the insurer's expert should have been allowed to testify within the peer review's basis even if relying on records of the provider and other physicians, and remanded.
Of the 73 decisions on this question in the First Department courts and the Court of Appeals, 5 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
Cited in this decision
A label shows how this decision treated the case it cites.
- Home Care Ortho. Med. Supply, Inc. v American Manufactures Mut. Ins. Co. (2007 NY Slip Op 50302(U)) FollowedAn insurer's medical-necessity expert may testify without having performed the original peer review if testimony stays within its grounds.
- Spruce Med. & Diagnostic, P.C. v Lumbermen’s Mut. Cas. Co. (2007 NY Slip Op 51104(U))An insurer's medical expert need not be the peer reviewer if cross-examination is available and testimony stays within the stated denial basis.
Cited by
A label shows how the later decision treated this one.
- Beal-Medea Prods., Inc. v GEICO Gen. Ins. Co. (2010 NY Slip Op 50800(U)) DistinguishedThe insurer failed to establish lack of medical necessity because its substitute peer review expert did not prove the records' reliability.
Similar decisions
- Bronx Expert Radiology, P.C. v Great N. Ins. Co. (2009 NY Slip Op 51474(U))The provider failed to justify its delayed claim submission after mistakenly billing the wrong insurer.
- 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.
- Cross Cont. Med., P.C. v Allstate Ins. Co. (2006 NY Slip Op 26322)A provider cannot challenge the reliability of its own principal's treatment records as the source of an insurer's expert opinion.
- 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.
- Queens Vil. Med. Care, P.C. v Government Employees Ins. Co. (2017 NY Slip Op 51799(U))An expert medical witness's specialty affects the weight of the testimony, not the witness's competency to testify as an expert.