The Rogak Report: 01 Jan 2008 (Part I) ** No Fault - Trial - Peer Review **
WHEN PEER REVIEW DOCTOR IS NOT AVAILABLE FOR TRIAL, COURT MUST ALLOW SUBSTITUTE DOCTOR TO TESTIFY FOR NO-FAULT INSURER
Dilon Med. Supply Corp. a/a/o Mania Adiniaeva v. New York Cent. Mut. Ins. Co. 2007 NYSlipOp 52454(U) Decided on December 27, 2007 Appellate Term, Second Department Edited by Lawrence N. Rogak
At the commencement of this no-fault trial in Civil/Queens before Judge Meyerson, the parties stipulated to plaintiff's prima facie case. They also stipulated that defendant timely mailed the two denial of claim forms at issue which stated that plaintiff's claims were denied, based upon peer reviews, on the ground of lack of medical necessity.
After the insurer announced that the doctors who prepared the peer review reports were unavailable, plaintiff moved to preclude testimony by the medical expert proffered by defendant on the grounds that his opinion would be hearsay and that plaintiff would be prejudiced by its inability to cross-examine the doctors who prepared the peer review reports upon which plaintiff's claims were denied. The court granted plaintiff's motion to preclude testimony by defendant's medical expert.
After defendant rested without calling any other witnesses, the court found that defendant failed to sustain its burden of demonstrating a lack of medical necessity and awarded plaintiff the principal sum of $1,650. Subsequently, a judgment awarding said sum to plaintiff was entered and this appeal by defendant ensued.
The Appellate Term reversed. "Defendant, having preserved the defense of lack of medical necessity by timely denying the claims based upon peer reviews, the issue before the court was whether the rationale for the conclusion in the peer review reports, upon which defendant's denial of claim forms was based, was correct. Since defendant sought to call a medical expert witness who was available for cross-examination, and his testimony as to the lack of medical necessity of plaintiff's services would be limited to the basis for the denials as set forth in the original peer review reports, the expert witness should have been permitted to testify."
"In light of the foregoing, the judgment is reversed and a new trial ordered."