December 16, 2016

Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of N.Y. (2016 NY Slip Op 51815(U))

https://www.beynensonlaw.com/case-law/metropolitan-diagnostic-med-care-p-c-v-erie-ins-co-of-n-y-2016-nyslip-op-51815u/

Court: Appellate Term, Second Department
Decided: December 16, 2016
Citation: 2016 NY Slip Op 51815(U) · 54 Misc 3d 129(A)
Posture: Trial
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity Trial and evidence
Legal questions: Lack of medical necessity (see the maps)

Cite as

Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of N.Y., 54 Misc 3d 129(A), 2016 NY Slip Op 51815(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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.

The insurer's medical-necessity defense failed at trial because its peer-review doctor's testimony was found not credible. The sole trial issue was the necessity of cervical and thoracic MRIs, and the insurer's orthopedic surgeon was the only witness. The Appellate Term, Second Department, affirmed judgment for the provider. It rejected Civil Court's conclusion that the witness was unqualified: the difference between the witness's specialty and the prescribing doctor's specialty affected weight, not competency to testify as an expert. Nevertheless, there was no basis to disturb the independent finding that the testimony was not credible.

Reported in New York Official Reports at Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of N.Y. (2016 NY Slip Op 51815(U))

[*1]

Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of N.Y.

2016 NY Slip Op 51815(U) [54 Misc 3d 129(A)]

Decided on December 16, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2015-606 K C

Metropolitan Diagnostic Medical Care, P.C., as Assignee of Elan Wolkowitz, Respondent,
against
Erie Insurance Company of New York, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered August 5, 2014. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,839.34.

ORDERED that the judgment is affirmed, with $25 costs.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the sole issue was the medical necessity of the MRIs of plaintiff’s assignor’s cervical and thoracic spines. The only witness was defendant’s doctor, a board-certified orthopedic surgeon with 30 years of experience, who also “write[s] papers, and give[s] lectures.” He testified that he was the doctor who had prepared the peer review reports concerning the two MRIs at issue in this action and found that the MRIs were not medically necessary. The peer review reports were admitted into evidence, over plaintiff’s objection, but the underlying medical records were not admitted into evidence. At the close of the doctor’s testimony, each side moved for a directed verdict. The Civil Court, finding that defendant’s medical witness was not qualified as an expert and, in any event, that the witness’s testimony was not credible, awarded judgment in favor of plaintiff in the principal sum of $1,839.34.

The fact that defendant’s witness was an orthopedic surgeon and the MRIs at issue were prescribed by a doctor whose specialty is physical medicine and rehabilitation goes to the weight to be given to the testimony and not, contrary to the Civil Court’s determination, to the witness’s competency to testify as an expert (see Gordon v Tishman Constr. Corp., 264 AD2d 499, 502 [1999]; Smith v City of New York, 238 AD2d 500, 500-501 [1997]; Fine Healing Acupuncture, P.C. v Country-Wide Ins. Co., 33 Misc 3d 55, 56 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). However, we find no basis to disturb the Civil Court’s finding that the witness’s testimony was not credible.

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: December 16, 2016

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: Insurer's medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)

Upheld judgment for the provider because the trial court found the insurer's peer reviewer not credible, although his specialty went only to the weight of his testimony, not his competence to testify.

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, 109 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Fine Healing Acupuncture, P.C., v Country-Wide Ins. Co. (2011 NY Slip Op 21361) FollowedAn insurer's medical-necessity denial need not rest on an examination by a practitioner in the treating provider's specialty.

Cited by

A label shows how the later decision treated this one.

Queens Vil. Med. Care, P.C. v Government Employees Ins. Co. (2017 NY Slip Op 51799(U)) FollowedAn expert medical witness's specialty affects the weight of the testimony, not the witness's competency to testify as an expert.
Advanced Recovery Equip. & Supplies, LLC v Global Liberty Ins. Co. (2020 NY Slip Op 51373(U))Factual disputes over medical necessity and timely claim submission precluded summary judgment and a trial limited to the fee schedule.

Similar decisions

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.
West Tremont Med. Diagnostic, P.C. v Geico Ins. Co. (2006 NY Slip Op 51871(U))A diagnostic provider performing prescribed MRIs remains subject to a lack-of-medical-necessity defense.
Metropolitan Diagnostic Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. (2015 NY Slip Op 50383(U))The provider's physician affirmation raised a triable issue as to whether the services were medically necessary.
Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co. (2013 NY Slip Op 52004(U))The insurer's unrebutted sworn peer review established that the services lacked medical necessity.
Advanced Orthopedics, PLLC v GEICO (2019 NY Slip Op 50500(U))The insurer's medical-necessity defense was sustained based on the trial court's supported assessment of the experts' credibility.