Out of scope peer: it is okayDecember 26, 2017

Queens Vil. Med. Care, P.C. v Government Employees Ins. Co., 2017 NY Slip Op 51799(U)(App. Term 2d Dept. 2017)

Plaintiff moved to preclude defendant’s expert medical witness from testifying on the ground that his specialty is physical medicine and rehabilitation, while the author of the peer report is an orthopedic surgeon who stated in the peer review report that he was conducting the review from an orthopedic surgery standpoint. The court precluded the witness, granted plaintiff’s application for a directed verdict and awarded judgment in favor of plaintiff in the principal sum of $2,671.

An expert medical witness’s specialty goes to the weight to be given to the testimony and not to the witness’s competency to testify as an expert (see Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of NY, 54 Misc 3d 129[A], 2016 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Thus, defendant’s witness should have been permitted to testify.”

This is a really interesting paradigm.  There is case law as we all know about the out of specialty doctor.  A PMR commenting on an orthopedist appears to be inappropriate in light of the Second Department case law on the issue involving out of specialty expert evidence.

Yet, if we are discussing PT, then perhaps the weight of evidence rule is correct?

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