Verdict in favor of Plaintiff sustainedDecember 29, 2016

Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of N.Y., 2016 NY Slip Op 51815(U) (1st Dept. 2016)


(1) At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the sole issue was the medical necessity of the MRIs of plaintiff’s assignor’s cervical and thoracic spines. The only witness was defendant’s doctor, a board-certified orthopedic surgeon with 30 years of experience, who also “write[s] papers, and give[s] lectures.

(2) The Civil Court, finding that defendant’s medical witness was not qualified as an expert and, in any event, that the witness’s testimony was not credible, awarded judgment in favor of plaintiff in the principal sum of $1,839.34.


(1) The fact that defendant’s witness was an orthopedic surgeon and the MRIs at issue were prescribed by a doctor whose specialty is physical medicine and rehabilitation goes to the weight to be given to the testimony and not, contrary to the Civil Court’s determination, to the witness’s competency to testify as an expert

(2) “However, we find no basis to disturb the Civil Court’s finding that the witness’s testimony was not credible.”

My thoughts

The most recent theme running through these medical necessity trials is that the doctor is (or is not) credible.  Upon the fact-finder making that threshold finding, the appeal will sink or swim.


2 Responses

  1. is this an issue between 2 medical doctors? A good examination of this issue appears in Elmont Open MRI v State Farm 2010ny slip op 50053U where the court rejected a neuros peer of a chiro MRI citing 3 App Div cases of Taormina, Behar and Shectman. Completely different education backgrounds should be the standard not different trees of the same medical education

  2. Alan Klaus says:

    I see these decisions where P wins even though they dont bring a DR.. Even though I am pro P I find it ridiculous. If the Dr is even somewhat credible in close to the right field of practice that party should win. I would love to see the transcript to see why the Dr wasnt credible.

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