An exercise in absurdity

A-Quality Med. Supply v Geico Gen. Ins. Co., 2010 NY Slip Op 20502 (Civ. Kings 2010)

So let me get this straight.  The failure to produce an admissible peer review into evidence at trial precludes a party from raising a medical necessity defense?  A party that stipulates to a denial being proper can still raise the issue regarding the impropriety of said denial post trial?

I am lost.  Sorry.

To answer the first question, I tend to think that placing a peer report into evidence by its proponent constitutes improper bolstering and is a Trowbridge (People v Trowbridge, 305 NY 471) violation.  The party opposing the peer review is free to place the peer report into evidence as an admission, although I think the better practice might be to mark it for identification and impeach the witness off of it.  The signature of the peer review is relevant when it is used as an affidavit or affirmation during motion practice.  Otherwise, it does not matter.

Regarding the breach of the stipulation, and the court’s comment, “[d]efendant has not provided, and the Court has not found, any authority to support the notion that plaintiff waived its ability to object to the denials during trial[,]” I would read Mid Atl. Med., P.C. v Electric Ins. Co., 26 Misc 3d 126(A)(App. Term 2d Dept. 2010) and begin writing my appeal.  While I know some people have told me not to give free legal advice on here, I feel compelled to assist in the reversal of a decision that I think is just plain wrong.  Also, despite the findings of the Civil Court, this case does not present any novel issues.  What it does present is a perverse illustration in semantics.

Lastly, I just hope when this case gets reversed (and it should), the Appellate Term directs the entry of judgment in favor of Geico.  Plaintiff played this charade and does not deserve a new trial.