In affirming the denial of plaintiff’s summary judgment motion, the Appellate Term, First Department in Krishna v Liberty Mut. Ins. Co. 2009 NY Slip Op 51312(U)(App. Term 1st Dept. 2009) reiterated its position (Response Medical Equipment v. General Assur. Co.13 Misc.3d 129[A][App. Term 1st Dept. 2006]; Mollins v. Allstate Ins. Co.20 Misc.3d 141[A][App. Term 1st Dept. 2008]) that an insurance carrier’s expert may comment on medical evidence not contained in a peer report or IME report in support of its lack of medical necessity defense.
The pertinent portion of the Krishna opinion states the following: “The initial peer review report relied upon by defendant, as amplified upon defendant’s receipt of additional documentation from plaintiff regarding his claim, set forth sufficient facts to raise a triable issue as to the medical necessity of the health services and diagnostic tests performed by plaintiff. “
