Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co.
2012 NY Slip Op 50349(U) [34 Misc 3d 154(A)]
Decided on February 21, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 21, 2012


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Park Slope Medical and Surgical Supply, Inc. as Assignee of RENEE E. INGRAM, Respondent, —


Progressive Insurance Company, Appellant. ———————————— 1;————————————&# 151;———————————— ————————x

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 6, 2010. The judgment, after a nonjury trial, awarded plaintiff the total sum of $3,808.56.

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

The 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. At the nonjury trial, the Civil Court essentially 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 as to her opinion as to the medical necessity of the supplies at issue in this case, which testimony would be limited to the basis for the denial as set forth in the original peer review report (Radiology Today, P.C. v Progressive Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51724[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]; see also 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]).

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

Weston and Rios, JJ., concur.

Golia, J.P., concurs in a separate memorandum.

Golia, J.P., concurs in the following memorandum:

While I concur in the result, I would like to briefly clarify two issues about which I am concerned.

First, I am concerned that the majority's finding that the testimony of defendant's expert [*2]medical witness "be limited to the basis for the denial as set forth in the original peer review report" risks interpretations which could impose unduly restrictive limitations upon the expert witness's ability to offer testimony regarding issues properly before the trier of fact. "The admissibility and scope of expert testimony is a determination within the discretion of the trial court" (Christoforatos v City of New York, 90 AD3d 970 [2011]). A defendant insurer in a no-fault case is limited to those defenses properly asserted within the time limits imposed by the rules of New York's no-fault scheme. The facts at issue in a particular trial may also be limited by a judge's ruling pursuant to CPLR 3212, as was done here. However, medical experts at trial should be able to bring their expertise to bear in a manner which amounts to more than simply regurgitating those facts included in the original peer review report.

I do not believe the majority intends this directive to result in the undue restriction of expert testimony. However, in the interest of avoiding conflicting interpretations of this opinion, I choose to briefly address this issue. In short, I do not believe that this opinion should be read to prevent expert witnesses from expressing their opinions as to the content and conclusions contained in a properly admitted peer review report written by a doctor other than the testifying doctor. Additionally, when testifying in regard to such peer review reports, expert witnesses should be permitted to form and express their own expert opinions based upon the medical facts contained in the record, including a properly admitted peer review report.

An expert is permitted to testify as to his or her opinion based upon facts properly in evidence and that expert's particular area of expertise, so long as such testimony does not unduly trod upon the province of the trier of fact as the ultimate arbiter of the question in controversy (see generally People v Cronin, 60 NY2d 430 [*3]
[1983]). For example, an expert should not be prohibited from answering relevant, probative hypothetical questions, a common occurrence at trial.

Second, while not directly addressed in the majority opinion, I wish to briefly discuss the implications of the Civil Court's ruling pursuant to CPLR 3212 (g) whereby the court held that the issue of medical necessity would be the sole issue of fact to be determined at trial. A claim that billed-for services were not medically necessary is a defense available to a defendant insurer. However, in the present matter, both defendant and plaintiff presented arguments regarding the issue of medical necessity in reciprocal motions for summary judgment. In denying both motions and finding that a determination as to medical necessity required a trial, the Civil Court established that questions existed as to the medical necessity of the billed-for services, as well as defendant's contrary claim.

Medical necessity is presumed upon the timely submission of a no-fault claim (see All County Open MRI & Diagn. Radiology P.C. v. Travelers Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50318[U] [App Term, 9th & 10th Jud Dists 2006]). Thus, ordinarily it falls to the defense to establish that the billed-for services were not medically necessary. Here, the motion court denied both plaintiff's and defendant's motions for summary judgment and set the only trial issue as to medical necessity. Thus, the presumption of medical necessity no longer exists in the present matter, and, as such, the rationale for burdening the defense with the argument no longer exists. As the law of this case has established that questions of medical necessity exist, it is only reasonable that plaintiff establish at trial that the billed-for services were medically necessary.

To the extent that I may have previously held otherwise, I no longer follow those tenets.
Decision Date: February 21, 2012