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New trial with a twist on a medical necessity claimOctober 2, 2017

Promed Orthocare Supply, Inc. v Geico Ins. Co., 2017 NY Slip Op 51264(U)(App. Term 1st Dept. 2017)

“The Civil Court erred in refusing to consider expert testimony from the witness who did not prepare the peer review report on the ground that the peer review report was not admitted into evidence, and in indicating that testimony from the author of the peer review report was required. Testimony of an expert witness who did not prepare the peer review report upon which an insurer’s denial of claim was based can be used to prove a lack of medical necessity (see e.g. Metropolitan Med. Supplies, LLC v GEICO Ins. Co., 36 Misc 3d 141[A], 2012 NY Slip Op 51490[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Moreover, at trial, an insurer cannot use a peer review report to prove its defense of lack of medical necessity (see e.g. A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). While the expert witness’s testimony should be limited to the basis for the denial as set forth in the peer review report (e.g. Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), it is plaintiff’s burden to make an appropriate objection in the event the testimony goes beyond the basis for the denial and, if necessary, produce the peer review report.”

Here are some interesting rules (enunciated again).  First, the peer report never goes into evidence. Second, the expert (whomever it is) can say what (s)he wants subject to an objection that is oversteps the utilization review.  Third, the Court cannot act sua sponte.

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