At a trial of this no-fault benefits action, the parties stipulated that plaintiff's prima facie case was established, defendant's denial of claim form was timely served, and the defendant's physician was qualified to testify as an expert. The peer review report and denial of claim form were admitted into evidence via stipulation. The only issue for this Court is whether the custom fitted lumbosacral orthosis was medically necessary.

In support of its defense of lack of medical necessity, the defendant proffered the testimony of Dr. Razi Hussaini, a chiropractor, to testify in the stead of Dr. Kevin J. Curley, Jr., regarding Dr. Curley's peer review of the lumbosacral orthosis that plaintiff provided to its assignor. Dr. Hussaini testified that the provision of the lumbosacral orthosis was a deviation from the chiropractic standard of care because its purpose is to restrict movement, which is directly contrary to the conservative care treatment the assignor was undergoing to promote movement.

Prior to cross-examining Dr. Hussaini, plaintiff's counsel made a motion to preclude the testimony of Dr. Hussaini based upon the rationale set forth in Urban Radiology, P.C. v. Tri-State Consumer Insurance Co., 27 Misc 3d 140(A), 2010 NY Slip Op. 50987(U)(App. Term 2d, 11th & 13th Jud. Dists. 2010). This Court allowed plaintiff's counsel to voir dire Dr. Hussaini. Upon voir dire, Dr. Hussaini admitted that he received the assignor's medical records from a vendor known as Empire Stat. He considered the records to be true and accurate, and he based his opinion regarding medical necessity upon the records. Whereupon, plaintiff's counsel argued that since the documents relied upon were considered to be true, the rationale in Urban Radiology, P.C., did not apply. Thus, the doctor's opinion was based upon hearsay, and inadmissible. Defense counsel countered that this matter fell squarely within Urban Radiology, P.C. It argued that Dr. Hussaini's testimony should not be precluded because the records were deemed reliable in Dr. Hussaini's [*2]profession. This Court reserved decision as to the motion.

After due deliberation, this Court's decision on the motion is as follows: the motion is denied. It is clear that the peer reviewer made a reasonable assumption based upon the medical records presented. That is, if what is stated in the records is true then the lumbosacral orthosis is not medically necessary. Indeed, a peer reviewer cannot assert whether a physical condition is in fact true simply by reviewing records. Hence, based upon this hypothetical proposition, the physician's opinion is admissible.

Upon cross-examination, Dr. Hussaini testified that a lumbosacral orthosis is reserved for surgical candidates and post-operative care. The assignor's entire medical record proves she was not a candidate for surgery, since there were only indications of cervical and lumbar spine strains and sprains. In fact, the most recent evaluation recommended continued conservative care.

The plaintiff did not call a rebuttal witness.

After a review of the record and due deliberation, this Court finds that the defendant sustained its burden of proving lack of medical necessity for the supply.

Accordingly, judgment is in favor of the defendant, and the complaint is dismissed.

This constitutes the decision and order of this Court.

Dated: November 16, 2010

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Genine D. Edwards

Judge of the Civil Court