May 14, 2013

Radiology Today, P.C. v Travelers Ins. Co. (2013 NY Slip Op 50849(U))

Headnote

The court considered the case of Radiology Today, P.C. as Assignee of BRIANT JOSEPH v. Travelers Insurance Company, where the plaintiff sought to recover first-party no-fault benefits. The main issue was whether the defendant had established a lack of medical necessity for the radiology services at issue. The court held that the defendant's expert witness testimony did not provide a factual basis or medical rationale for her opinion, therefore, it was insufficient to establish the lack of medical necessity for the services rendered. Additionally, the court ruled that a peer review report, unlike a witness, is not admissible to prove lack of medical necessity and is not subject to cross-examination. The Civil Court's determination that the defendant had not established that the services at issue were not medically necessary was upheld, and the judgment in favor of the plaintiff was affirmed.

Reported in New York Official Reports at Radiology Today, P.C. v Travelers Ins. Co. (2013 NY Slip Op 50849(U))

Radiology Today, P.C. v Travelers Ins. Co. (2013 NY Slip Op 50849(U)) [*1]

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

2013 NY Slip Op 50849(U) [39 Misc 3d 146(A)]

Decided on May 14, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 14, 2013

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

PRESENT: : ALIOTTA, J.P., PESCE and RIOS, JJ
2011-779 K C.

Radiology Today, P.C. as Assignee of BRIANT JOSEPH, Respondent,
against
Travelers Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered March 26, 2010. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $912.

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

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held solely with respect to defendant’s defense of lack of medical necessity. Defendant’s expert witness identified her peer review report and conclusorily testified that the radiology services at issue were not medically necessary. Although the court allowed the peer review report into evidence for the limited purpose of showing that it was prepared by defendant’s expert witness, it did not consider the contents of the report. The court granted plaintiff’s motion for a directed verdict and awarded judgment to plaintiff, holding that defendant had not established a lack of medical necessity for the services at issue.

Since defendant’s expert’s testimony did not include a factual basis or medical rationale for her opinion, it was insufficient to establish that there was a lack of medical necessity for the services rendered (see A-Quality Med. Supply v GEICO Gen. Ins. Co., Misc 3d , 2013 NY Slip Op 23088 [App Term, 2d, 11th & 13th Jud Dists 2013]; PSW Chiropractic Care, P.C. [*2]v Maryland Cas. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51719[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Additionally, a peer review report, unlike a witness, is not subject to cross-examination and is not admissible by defendant to prove lack of medical necessity (see A-Quality Med. Supply, Misc 3d , 2013 NY Slip Op 23088). Thus, the Civil Court’s determination that defendant had not established that the services at issue were not medically necessary, could have been reached under a fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]).

As we find no basis to disturb the Civil Court’s findings, the judgment is affirmed.

Aliotta, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 2013