September 16, 2011

Radiology Today, P.C. v Progressive Ins. Co. (2011 NY Slip Op 51724(U))

https://www.beynensonlaw.com/case-law/radiology-today-p-c-v-progressive-ins-co-2011-ny-slip-op-51724u/

Court: Appellate Term, Second Department
Decided: September 16, 2011
Citation: 2011 NY Slip Op 51724(U) · 32 Misc 3d 144(A)
Posture: Trial
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Trial and evidence Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Radiology Today, P.C. v Progressive Ins. Co., 32 Misc 3d 144(A), 2011 NY Slip Op 51724(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 expert should have been permitted to testify although that expert did not prepare the peer review underlying the denial. The Appellate Term, Second Department, reversed the judgment for the provider and remitted the matter for a new trial. Under CPLR 3212 (g), the nonjury trial was limited to medical necessity. Before the insurer called any witnesses, the Civil Court excluded its peer review report, precluded its expert's testimony, and directed a verdict for the provider. Following Psychology YM, P.C. v Geico Gen. Ins. Co. and Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., the appellate court found the testimony should have been allowed; it expressly did not decide whether the peer review report was admissible.

Reported in New York Official Reports at Radiology Today, P.C. v Progressive Ins. Co. (2011 NY Slip Op 51724(U))

[*1]

Radiology Today, P.C. v Progressive Ins. Co.

2011 NY Slip Op 51724(U) [32 Misc 3d 144(A)]

Decided on September 16, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 16, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2010-1322 K C.

Radiology Today, P.C. as Assignee of LASONYA WHITE, Respondent,
against
Progressive Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered December 23, 2009. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $912.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

The nonjury trial of this action by a provider to recover assigned first-party no-fault benefits was limited, pursuant to CPLR 3212 (g), to the issue of the medical necessity of the billed-for services. Before defendant called any witnesses, the Civil Court precluded the admission of defendant’s peer review report into evidence, precluded the testimony of defendant’s expert witness and granted plaintiff’s motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered.

Defendant’s expert medical witness, who was not the expert who had prepared the peer review report upon which defendant’s denial of the subject claim was based, should have been permitted to testify (see Psychology YM, P.C. v Geico Gen. Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51316[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52454[U] [App Term, 2d & 11th Jud Dists 2007]). Under the circumstances presented, we do not reach the question of whether the peer review report could have been entered into evidence.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 16, 2011

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 the trial court erred in precluding the insurer's medical expert merely because he was not the author of the peer review report, and ordered a new trial without reaching the report's admissibility.

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

Cited in this decision

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

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.
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.

Cited by

A label shows how the later decision treated this one.

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.
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.
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.

Similar decisions

Radiology Today, P.C. v Travelers Ins. Co. (2013 NY Slip Op 50849(U))The insurer's conclusory expert testimony failed to establish lack of medical necessity because it supplied no factual basis or medical rationale.
Complete Radiology, P.C. v Progressive Ins. Co. (2011 NY Slip Op 52015(U))The insurer's peer review report raised a triable issue of medical necessity and defeated the provider's summary judgment motion.
Radiology Today, P.C. v Geico Ins. Co. (2017 NY Slip Op 51768(U))An insurer may present substitute expert testimony on medical necessity without admitting the peer review report for its truth.
Radiology Today, P.C. v Mercury Ins. Co. (2012 NY Slip Op 50148(U))The provider's owner's affirmation was improper under CPLR 2106 and failed to rebut the insurer's medical-necessity peer review.
Radiology Imaging of Queens v Progressive Ins. (2011 NY Slip Op 51860(U))The insurer's unopposed peer review and timely denial established entitlement to dismissal for lack of medical necessity.