December 27, 2007
Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 52454(U))
https://www.beynensonlaw.com/case-law/dilon-med-supply-corp-v-new-york-cent-mut-ins-co-2007-ny-slip-op52454u/
- Decided
- December 27, 2007
- Citation
- 2007 NY Slip Op 52454(U) · 18 Misc 3d 128(A)
- Posture
- Trial
- Later treatment
- Followed in 4 later decisions (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 Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 52454(U))
| Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co. |
| 2007 NY Slip Op 52454(U) [18 Misc 3d 128(A)] |
| Decided on December 27, 2007 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-1731 Q C.
against
New York Central Mutual Insurance Co., Appellant.
Appeal from a decision of the Civil Court of the City of New York, Queens County (Lee A. Mayerson, J.), dated May 16, 2006, deemed an appeal from the judgment entered September 20, 2006 (see CPLR 5520 [c]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,650.
Judgment reversed without costs and matter remanded to the court below for a new trial.
At the commencement of the trial in this action to recover assigned first-party no-fault benefits, the parties stipulated to plaintiff’s prima facie case. They also stipulated that defendant timely mailed the two denial of claim forms at issue which stated that plaintiff’s claims were denied, based upon peer reviews, on the ground of lack of medical necessity. After defendant announced that the doctors who prepared the peer review reports were unavailable, plaintiff moved to preclude testimony by the medical expert proffered by defendant on the grounds that his opinion would be hearsay and that plaintiff would be prejudiced by its inability to cross-examine the doctors who prepared the peer review reports upon which plaintiff’s claims were denied. The court granted plaintiff’s motion to preclude testimony by defendant’s medical expert. After defendant rested without calling any other witnesses, the court found that defendant failed to sustain its burden of demonstrating a lack of medical necessity and awarded plaintiff the principal sum of $1,650. Subsequently, a judgment awarding said sum to plaintiff was entered and this appeal by defendant ensued. [*2]
Defendant, having preserved the defense of lack of medical necessity by timely denying the claims based upon peer reviews (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]), the issue before the court was whether the rationale for the conclusion in the peer review reports, upon which defendant’s denial of claim forms was based, was correct. Since defendant sought to call a medical expert witness who was available for cross-examination, and his testimony as to the lack of medical necessity of plaintiff’s services would be limited to the basis for the denials as set forth in the original peer review reports, the expert witness should have been permitted to testify (see Spruce Med. & Diagnostic, P.C. v Lumbermen’s Mut. Cas. Co., 15 Misc 3d 143[A], 2007 NY Slip Op 51104[U] [App Term, 1st Dept]; Home Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept]).
In light of the foregoing, the judgment is reversed and a new trial ordered.
Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: December 27, 2007
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
Held the trial court erred in precluding the insurer's medical expert because he did not prepare the peer reviews; he was available for cross-examination and limited to the reports' basis, so a new trial was ordered.
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. 2 decisions in other departments that cite or are cited by this one are on the full map.
Cited in this decision
A label shows how this decision treated the case it cites.
- New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co. (2007 NY Slip Op 03671) FollowedAn insurer need not set forth a medical rationale in a denial form when the denial rests on a medical examination or peer review report.
- Spruce Med. & Diagnostic, P.C. v Lumbermen’s Mut. Cas. Co. (2007 NY Slip Op 51104(U)) FollowedAn insurer's medical expert need not be the peer reviewer if cross-examination is available and testimony stays within the stated denial basis.
- 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.
Cited by
A label shows how the later decision treated this one.
- Psychology YM, P.C. v Geico Gen. Ins. Co. (2011 NY Slip Op 51316(U)) FollowedThe insurer's peer reviewer was improperly precluded from testifying because the written report was not in admissible form.
- 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.
- Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 52300(U)) FollowedAn insurer's substitute medical expert may testify on medical necessity, limited to the denial grounds in the original peer review report.
- Bajaj v GEICO (2012 NY Slip Op 51106(U)) FollowedA substitute medical expert may support a medical necessity defense at trial without admission of the underlying peer review report.
- Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co. (2012 NY Slip Op 50349(U))An insurer's trial expert may testify on medical necessity without having authored the peer review, within the original report's denial basis.
- 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.
- Beal-Medea Prods., Inc. v GEICO Gen. Ins. Co. (2010 NY Slip Op 50800(U))The insurer failed to establish lack of medical necessity because its substitute peer review expert did not prove the records' reliability.
Similar decisions
- Dilon Med. Supply Corp. v Travelers Ins. Co. (2009 NY Slip Op 50737(U))The insurer's credited peer-review testimony established lack of medical necessity for the supplies, and the provider offered no rebuttal.
- A-Quality Med. Supply v GEICO Gen. Ins. Co. (2013 NY Slip Op 23088)An insurer's peer review report is inadmissible at trial to prove lack of medical necessity.
- 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.
- 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.
- Brand Med. Supply, Inc. v Unitrin Advantage Ins. Co. (2020 NY Slip Op 50687(U))An insurer's expert may not be precluded for untimely disclosure without intentional or willful nondisclosure and prejudice.