Peer Review Without Underlying Records: When the Appellate Term Got It Wrong on Medical Necessity

Active Imaging, P.C. v Progressive Northeastern Ins. Co, 2010 NY Slip Op 51842(U)(App. Term 2d Dept. 2010)

The Appellate Term, Second Department rejected a plaintiff’s challenge to a lack of medical necessity motion based upon a peer report — without the medical records that the peer doctor actually relied upon — holding that “these reports and records are not part of defendant’s prima facie showing.”

I hate to say this, and I feel some defense practitioners probably will not be happy with what I am going to say, but I will say it anyway, because this is my blog and I try to do the right thing: I think this decision is wrong.

Background: The Prima Facie Issue in Medical Necessity Cases

In New York no-fault insurance litigation, the insurer moving for summary judgment on medical necessity grounds must first establish a prima facie case that the services lacked medical necessity. This is typically accomplished through a peer review report — an opinion from a physician who reviewed the claimant’s treatment records and concluded that the services were not medically necessary.

The question in Active Imaging was straightforward: when the peer doctor’s opinion is based on his review of specific medical records, must those underlying records be submitted as part of the motion? The plaintiff argued yes — without the records, there is no way to evaluate whether the peer doctor’s conclusions are supported.

The Appellate Term disagreed, holding that the records reviewed by the peer doctor “are not part of defendant’s prima facie showing.” This allowed the carrier to obtain summary judgment based solely on the peer report itself, without attaching or authenticating the source materials.

Why the Decision Is Wrong

An opinion based upon medical records — whether those records are hearsay or not — should contain the records that were relied upon. This is a basic principle of expert opinion evidence. If an expert’s opinion is only as good as the foundation it rests on, the trier of fact (or reviewing court) needs access to that foundation to evaluate the opinion.

The Second Department has said exactly this in another case found elsewhere on this blog. Courts in both medical malpractice and general bodily injury litigation routinely require experts to disclose and attach the materials they relied upon when those materials form the basis of the opinion. The Active Imaging holding creates an inconsistency: no-fault peer review gets a lower standard than opinions in other civil litigation contexts.

The IME Cut-Off Distinction

Now, I do not feel the same way about IME cut-off cases. Unlike Judge Hirsch’s approach, I believe that a finding of lack of disability — or something that implies (but does not explicitly state) “medical maximum improvement” — prima facie establishes a lack of medical necessity for post-IME services, supplies, and procedures.

The reason IME cut-off cases are different: the IME examiner is making a prospective determination based on his or her direct physical examination of the claimant. The conclusion (“no further treatment is medically necessary”) flows directly from that examination, not from a review of documents. Accordingly, the lack of inclusion of the treating records in an IME cut-off summary judgment motion generally should not impact the carrier’s prima facie case.

Peer review is different. The peer doctor never examines the patient. The entire opinion is derivative — it depends entirely on what records were reviewed. Excluding those records from the motion record creates an asymmetry that disadvantages the provider and prevents a fair evaluation of the opinion’s merits.

The 3212(f) Problem

As a fail-safe, the court offered that “pursuant to CPLR 3212(f), a court has discretion to deny a motion for summary judgment or order a continuance to permit affidavits to be obtained or disclosure to be had, if facts essential to justify opposition may exist but cannot then be stated.”

In my view, the reference to CPLR 3212(f) as a remedy is a cop-out — and probably an admission that this decision does not rest on solid footing. If the ruling were clearly correct, there would be no need to offer providers a procedural escape hatch. The availability of 3212(f) relief implicitly acknowledges that the peer report alone may be insufficient to allow a fair contest of the motion.

The Broader Risk: Medical Malpractice and Bodily Injury

I believe the Appellate Division may grant leave on a case like this, for the simple reason that a decision of this type could be disastrous in medical malpractice and bodily injury litigation under the right fact scenario. If no-fault courts begin accepting bare expert opinions — without the underlying materials — as sufficient to meet the prima facie standard, that reasoning could migrate to higher-stakes litigation contexts where the consequences of summary judgment are far more severe.

My advice to the plaintiff’s bar: be careful before you file Notices of Trial in the Second Department. If a peer review motion is pending and you have not demanded the underlying records, do so immediately under CPLR 3212(f) or through a bill of particulars demand.

So Yes, This Blog Is Fair and Balanced

Defense practitioners sometimes expect that a no-fault defense attorney’s blog will cheerlead every carrier victory. But intellectual honesty matters more. The defense bar benefits most from a clear-eyed assessment of where the law is correctly decided and where it is not. When a court reaches a result that is legally questionable — even if it benefits the carrier in the short term — practitioners on both sides need to know.

This blog tries to provide that honest assessment. And here, the Appellate Term got it wrong.

Related Articles

• Civil Court’s flawed reasoning in no-fault insurance evidence disputes
• How medical experts establish competency to testify on standard of care
• Peer doctor testimony establishing prima facie lack of medical necessity
• Expert affirmations sufficient to defeat summary judgment in malpractice cases
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2010 decision, New York’s no-fault regulations and court precedents regarding peer review documentation requirements may have evolved, particularly concerning what constitutes adequate prima facie showing for medical necessity denials. Practitioners should verify current procedural requirements under Insurance Law Article 51 and recent Appellate Division rulings regarding the sufficiency of peer review reports and supporting documentation.