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