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Lack of medical necessity defense upheldJanuary 3, 2015

Five Boro Med. Equip., Inc. v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 51888(U)(App. Term 1st Dept. 2014)

“Plaintiff’s opposing submission, consisting of an attorney’s affirmation unaccompanied by any medical evidence or other competent proof, was insufficient to raise a triable issue (see Munoz v Hollingsworth, 18 AD3d 278, 279 [2005]; CPT Med. Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). Plaintiff’s objections to the peer review doctor’s qualifications “go to the weight and not the admissibility of her opinion” (Solano v Ronak Med. Care, 114 AD3d 592 [2014]).”

Certain judges often play the qualification card.  It works when dealing with nurses and fee schedule coders.  It does not work with peer review doctors, unless the service being reviewed is of a sub-specialty that the Geffner rule would apply.

One Response

  1. SunTzu says:

    I don’t think the sub-specialty point is the deciding factor. Note this quote from the recent App Div Case, Tsimbler v Fell, 2014 NY Slip Op 08982:

    “While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable'” (Behar v Coren, 21 AD3d 1045, 1046-1047, quoting Postlethwaite v United Health Servs. Hosps., Inc., 5 AD3d 892, 895; see Shectman v Wilson, 68 AD3d 848, 849). Thus, where a physician opines outside of his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered (see Shectman v Wilson, 68 AD3d at 850; Geffner v North Shore Univ Hosp., 57 AD3d 839; Bjorke v Rubenstein, 53 AD3d 519, 520; Glazer v Lee, 51 AD3d 970, 971; Mustello v Berg, 44 AD3d 1018, 1019; Behar v Coren, 21 AD3d at 1046-1047). Under the circumstances of this case, the plaintiff’s expert failed to lay the requisite foundation for his asserted familiarity with [*2]ophthalmology and, thus, his affidavit was of no probative value.”

    This case clarifies Geffner and requires any expert testifying outside of their area of specialty to lay a foundation of expertise or the aff is of ZERO probative value– this is a “qualification” determination, just not made prophylactically, before the opinion is rendered. The determination seems to be irreconcilable with the No-Fault and other rulings that have considered such opinions without foundation. How am I wrong?

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