Promed Orthocare Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 51009(U))

Promed Orthocare Supply, Inc. v GEICO Ins. Co.

2010 NY Slip Op 51009(U) [27 Misc 3d 1232(A)]

Decided on June 9, 2010

Civil Court Of The City Of New York, Kings County

Ottley, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through June 15, 2010; it will not be published in the printed Official Reports.

On April 13, 2010, a bench trial was held before this court. Both plaintiff and defendant established their prima facie cases, and the only issue for trial to be decided by this Court is medical necessity, as per a court order issued by Judge Sweeney on February 18, 2009. The medical supply at issue in this case is a custom fitted lumbosacral support belt.

The plaintiff's counsel rested.

Discussion

At the onset of the trial, plaintiff's counsel moved to preclude the testimony of defendant's witness, Dr. Robert Snitkoff, on the grounds that the testimony would be hearsay. The court reserved decision as to the preclusion of the doctor's testimony.

No objection was made as to Dr. Snitkoff's expertise in the field of chiropractic medicine. However, upon direct examination, counsel for plaintiff objected to Dr. Snitkoff's qualification to testify as to medical records reviewed which are that of medical doctors. The court allowed plaintiff's counsel to conduct voir dire of Dr. Snitkoff to determine whether or not he was qualified to testify.

Thereafter, the court allowed the testimony of Dr. Snitkoff, as to his qualification to testify. The questions posed during voir dire established Dr. Snitkoff's qualification to testify as to the records reviewed. Furthermore, the court overruled plaintiff's attorney's objection as to hearsay, which will be addressed below.

Plaintiff's objection is based on the premise that the testimony of Dr. Snitkoff is based upon another doctor's report, and that the report is based on records that are not in evidence, and therefore, Dr. Snitkoff cannot come in and testify as to another doctor's report because his testimony would be hearsay.

In this case, the defendant's witness reviewed the medical records concerning the assignee, Beverley Prince, who received a custom fitted lumbosacral support belt. The witness, Dr. Robert Snitkoff testified, based upon the peer review of Dr. Sohn that the medical supply was not medically necessary. The report of Dr. Sohn and the testimony of Dr. Snitkoff consists of a plethora of conditions, complaints and treatment of the assignee Beverley Prince. The injuries, diagnosis and treatment have not changed. The testifying physician herein, Dr. Snitkoff, is testifying as to the medical necessity of a medical supply, and not to establish the fact of an injury. Dr. Snitkoff is providing testimony based upon a diagnosis and the treatment received, and whether the medical supply was necessary under such circumstances.

In Urban Radiology, P.C., a/a/o Gennaidy Avez and Marina Rafailova v. Tri-State Consumer Insurance Company, 2010 NY Slip Op 50987(U), [AT 2nd, 11th & 13th Jud. Dists., 6/8/10], reversed the lower court's decision which granted plaintiff summary judgment, and held that inasmuch as the defendant was not using the [*2]underlying medical records for their truth, such records were not being used for a hearsay purpose, citing, Dawson v. Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v. Lextaj Corp., 197 AD2d 479 [1993]). Similarly, this Court has ruled that Hambsch v. New York City Transit Authority, 63 NYS2d 723 [1984] and Wagman v. Bradshaw, 292 AD2d 84 [2002], are distinguishable, in light of the fact that the expert relied upon medical records to establish the fact of an injury. The Appellate Term, in Urban Radiology, P.C., supra , also held "plaintiff's argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided was not medically necessary is irrelevant."

This court finds Dr. Snitkoff's testimony to be credible. The testimony did not go beyond the facts and opinion contained in the peer review report of Dr. Sohn. The court finds that the defendant established by a preponderance, as well as reliable evidence, that the medical supply at issue was not medically necessary. The plaintiff failed to rebut the objective testimony and evidence proffered by the defendant.

Accordingly, a verdict is hereby granted in favor of defendant. The complaint is dismissed.