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The Rogak Report: 28 Feb 2007 ** No-Fault - Peer Reviews **

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  • Lawrence Rogak
    INSURER S EXPERT AT TRIAL DOES NOT HAVE TO BE THE SAME ONE WHO DID THE PEER REVIEW Home Care Ortho. Med. Supply, Inc. a/a/o Gui Yaing Xiao, Bing Yong Gao,
    Message 1 of 1 , Feb 28, 2007
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      INSURER'S EXPERT AT TRIAL DOES NOT HAVE TO BE THE SAME ONE WHO DID
      THE PEER REVIEW

      Home Care Ortho. Med. Supply, Inc. a/a/o Gui Yaing Xiao, Bing Yong
      Gao, Jason Ng v. American Manufacturers Mut. Ins. Co., 2007 NYSlipOp
      50302(U) (Appellate Term, First Department

      Defendant appealed from an order of the Civil Court of the City of
      New York, Bronx County (Raul Cruz, J.), which granted plaintiff's
      motion for a directed verdict. The Appellate Term reversed.

      "At the trial of this no-fault suit, 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."

      Comment: This decision stands for two important principles in no-
      fault litigation: (1) The expert who testifies at trial does not have
      to be the same expert who wrote the peer review (although the trial
      expert will be limited to the conclusions in the written peer review
      report); and (2) plaintiffs cannot successfully object, based on the
      hearsay rule, to an expert's testimony which refers to the contents
      of the assignor's medical reports that were provided in response to
      the insurer's verification requests.

      Larry Rogak
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