December 15, 2017

Radiology Today, P.C. v Geico Ins. Co. (2017 NY Slip Op 51768(U))

Headnote

The case involves Radiology Today, P.C. suing Geico Ins. Co. to recover assigned first-party no-fault benefits for services provided to its assignor. The main issue was whether the peer review report could be admitted into evidence at trial to prove the insurer's defense of lack of medical necessity. The court held that an insurer cannot use a peer review report at trial for its "truth" to prove the defense and that this would be impermissible bolstering of the expert's testimony. The court directed a verdict in favor of plaintiff, but the Appellate Term reversed and remitted the matter for a new trial on the first cause of action, indicating that a new trial is required to determine whether the services at issue were medically necessary.

Reported in New York Official Reports at Radiology Today, P.C. v Geico Ins. Co. (2017 NY Slip Op 51768(U))

Radiology Today, P.C. v Geico Ins. Co. (2017 NY Slip Op 51768(U)) [*1]
Radiology Today, P.C. v Geico Ins. Co.
2017 NY Slip Op 51768(U) [58 Misc 3d 132(A)]
Decided on December 15, 2017
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This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2389 Q C

Radiology Today, P.C., as Assignee of Sofya Shlafman, Respondent,

against

Geico Ins. Co., Appellant.

Law Offices of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C. (Emilia I. Rutigliano, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered March 20, 2013. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $878.67 on its first cause of action.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted for a new trial on the first cause of action.

In this action by a provider to recover assigned first-party no-fault benefits for services it had provided to its assignor, a nonjury trial was held on the first cause of action, limited to defendant’s defense of lack of medical necessity (see CPLR 3212 [g]). Prior to defendant calling any witnesses, the Civil Court indicated that, as defendant would not be able to admit into evidence the peer review report upon which the denial of claim had been based “for the truth of what is in there,” defendant would not be able to meet its “burden.”[FN1] The court disagreed with [*2]defendant’s position that a “substitute doctor” could testify without the peer review report being admitted into evidence and directed a verdict in favor of plaintiff. A judgment was subsequently entered awarding plaintiff the principal sum of $878.67 on its first cause of action.

Contrary to the apparent holding of the Civil Court, an insurer cannot use a peer review report at trial for its “truth,” i.e., to prove the insurer’s defense of lack of medical necessity (see Alev Med. Supply, Inc. v Government Empls. Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24, 26 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Indeed, the “admission of a peer review report into evidence as part of a defendant’s proof of lack of medical necessity may constitute impermissible bolstering of its expert’s testimony” (A-Quality Med. Supply, 39 Misc 3d at 26). While an insurer’s expert witness’s testimony should be limited to the basis for the denial as set forth in the peer review report (see e.g. Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), “it is plaintiff’s burden to make an appropriate objection in the event the testimony goes beyond the basis for the denial and, if necessary, produce the peer review report” (Promed Orthocare Supply, Inc. v Geico Ins. Co., ____ Misc 3d _____, 2017 NY Slip Op 51264[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Consequently, a new trial is required on the first cause of action.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial on the first cause of action.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 15, 2017

Footnotes

Footnote 1: In a no-fault trial dealing with a defense of lack of medical necessity, an insurer has an initial burden to rebut the presumption of medical necessity which attaches to a claim form; however, it is the plaintiff who has the ultimate burden of proving, by a preponderance of the evidence, that the services at issue were medically necessary (see Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).