February 26, 2007

Home Care Ortho. Med. Supply, Inc. v American Manufactures Mut. Ins. Co. (2007 NY Slip Op 50302(U))

https://www.beynensonlaw.com/case-law/home-care-ortho-med-supply-inc-v-american-manufactures-mut-ins-co-2007-ny-slip-op-50302u/

Court: Appellate Term, First Department
Decided: February 26, 2007
Citation: 2007 NY Slip Op 50302(U) · 14 Misc 3d 139(A)
Posture: Trial
Later treatment: Followed in 8 later decisions (see Cited by)
Issues: Trial and evidence Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Home Care Ortho. Med. Supply, Inc. v American Manufactures Mut. Ins. Co., 14 Misc 3d 139(A), 2007 NY Slip Op 50302(U) (App Term, 1st Dept 2007)

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 medical-necessity expert may testify without having performed the original peer review if testimony stays within its grounds. The provider obtained a directed verdict after seeking to preclude the insurer's expert on two assigned no-fault claims. The expert could be fully cross-examined, and testimony would be limited to the grounds in the original peer review under General Acc. Ins. Group v Cirucci. Reliance in part on the assignors' medical records did not bar testimony; the provider could not challenge records it had affirmatively relied on as proof of claim in response to verification requests. The Appellate Term, First Department, reversed, denied the directed-verdict motion and remanded for trial.

Reported in New York Official Reports at Home Care Ortho. Med. Supply, Inc. v American Manufactures Mut. Ins. Co. (2007 NY Slip Op 50302(U))

[*1]

Home Care Ortho. Med. Supply, Inc. v American Manufactures Mut. Ins. Co.

2007 NY Slip Op 50302(U) [14 Misc 3d 139(A)]

Decided on February 26, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 26, 2007

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., McCooe, Schoenfeld, JJ
570580/06.

Home Care Ortho. Med. Supply, Inc. a/a/o Gui Yaing Xiao, Bing Yong Gao, Jason Ng, Plaintiff-Respondent,
against
American Manufactures Mutual Insurance Co. d/b/a Kemper Insurance Co., Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), dated January 30, 2006, which granted plaintiff’s motion for a directed verdict.

PER CURIAM

Order (Raul Cruz, J.), dated January 30, 2006, reversed, without costs, motion denied, and matter remanded for trial.

In this action to recover assigned, first party no-fault benefits, plaintiff moved to preclude defendant’s expert’s testimony on the ground that the expert did not personally undertake the peer review underlying defendant’s denial of the two claims here at issue. This was error, since the expert 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 (see generally General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]). Nor is defendant’s expert precluded from testifying because his opinion is based, at least in part, on his review of the assignors’ medical records. Plaintiff may not be heard to challenge the reliability of the assignors’ medical records and reports, which, in response to defendant’s verification requests, were affirmatively relied upon by plaintiff as proof of claim.

This constitutes the decision and order of the court. [*2]
Decision Date: February 26, 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.

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 it was error to preclude the insurer's expert for not having written the peer review or for relying on the assignors' medical records the provider itself submitted, and remanded for 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 73 decisions on this question in the First Department courts and the Court of Appeals, 5 (this one included) are in the same category. 9 decisions in other departments that cite or are cited by this one are on the full map.

Cited by (12)

A label shows how the later decision treated this one.

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)) FollowedThe insurer's peer reviewer was improperly precluded from testifying because the written report was not in admissible form.
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.
Primary Psychiatric Health, P.C. v State Farm Mut. Auto Ins. Co. (2007 NY Slip Op 50583(U)) FollowedA provider cannot challenge the reliability of information its assignors supplied during psychological IMEs requested as verification.
Velen Med. Supply Inc. v Travelers Ins. Co. (2008 NY Slip Op 28252) FollowedA provider may not challenge the reliability of its own medical records relied on by an insurer's peer reviewer.
Bronx Expert Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 51475(U)) FollowedAn insurer's medical expert may testify on medical necessity within the original peer review's denial grounds and subject to cross-examination.
Popular Imaging, P.C. v State Farm Ins. Co. (2009 NY Slip Op 52355(U)) FollowedThe provider could not challenge the reliability of referring-physician records it relied on to perform the MRI. The Civil Court, Richmond County, rendered judgment for the insurer after a trial on medical necessity.
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.
PLP Acupuncture, P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 50491(U))The insurer's peer review report and acupuncturist's affidavit established lack of medical necessity, and the provider failed to rebut that showing.
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.

Show all 12 citing decisions

Similar decisions

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.
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.
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.
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.
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.