While I do not generally discuss Civil Court decisions, the one of Judge Levine in the matter of Popular Imaging, P.C. v State Farm Ins. Co., 2009 NY Slip Op 52355(U)(Civ. Ct. Richmond Co. 2009) is interesting in that it describes how a peer hearsay challenge at trial is lodged, presented, adjudicated and defeated.
“At the outset of Dr. Sarno’s testimony, plaintiff refused to stipulate into evidence the peer review report prepared by and medical records reviewed by Dr. Sarno, contending that this court should not consider Dr. Sarno’s opinion since it was based upon medical records and reports that were not in evidence and for which no evidence was submitted as to their reliability. pursuant to the leading case of Wagman v. Bradshaw, 292 AD2d 84 ( 2d Dpt 2002). The court reserved decision on this objection to Dr. Sarno’s testimony.”
“Here, the assignor’s physician, Dr. Fleisher , recommended that a MRI be performed; this is confirmed by Dr. Fleisher’s records. Dr. Sarno testified that in formulating an opinion he relied primarily upon Dr. Fleisher’s August 23, 2002 report of his neurological consultation with the assignor and Dr. Fleisher’s EMG/NCV testing of September 13, 2002. Since plaintiff performed the MRI based upon the records and referral from the assignor’s treating physician, who apparently deemed the test to be medically necessary, and since plaintiff sent the results and explanation of the MRI back to Fleisher, plaintiff cannot now be heard to challenge the reliability and authenticity of Dr. Fleisher’s records.
As to the requirement that the material be generally accepted in the profession as reliable and there be evidence establishing its reliability, Dr. Sarno testified that these are the types of reports that a doctor would review to offer an opinion on the necessity of a lumbar MRI. Dr. Sarno uses other doctors’ reports in formulating a medical opinion about his own patients and that it is a generally accepted standard in the medical profession to form an opinion based in part on other doctors reports. He testified that he takes these reports at face value. Dr. Sarno’s testimony is consistent with set precedent that a physician’s office records are admissible as evidence at trial to the extent they are germane to diagnosis and treatment.”
I would even opine that based upon Pan Chiropractic v. Mercury and PLP Acupuncture v. Progressive, all that needs to be proved is that the Plaintiff Assignor who is described on the medical documents has the same name as the assignor who is the subject of the lawsuit. Upon this minimal showing, Plaintiff would then be estopped from challenging the reliability of the assignor’s medical records that the peer or ime doctor reviewed. This should end the peer hearsay challenge at that point.
Of course, Plaintiff could always make an offer of proof, through the introduction of extrinsic evidence, to show that the records are not what they purport to be. I am not sure how this showing would realistically be met in an assigned first-party case.
