Radiology Today, P.C. v Progressive Ins. Co.,2011 NY Slip Op 51724(U)(App. Term 2d Dept. 2011)
“Defendant’s expert medical witness, who was not the expert who had prepared the peer review report upon which defendant’s denial of the subject claim was based, should have been permitted to testify (see Psychology YM, P.C. v Geico Gen. Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51316[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52454[U] [App Term, 2d & 11th Jud Dists 2007]). Under the circumstances presented, we do not reach the question of whether the peer review report could have been entered into evidence.”
Again, I would write the order as follows. “Ordered, that the judgment is reversed, on the law, with $30 costs and the complaint is dismissed.”
Defendant spent $1000-$1500 for a doctor who could not testify based upon a palpably frivolous argument. The matter should either be dismissed with prejudice or Plaintiff should be compelled to pay Defendant the amount it expended on hiring an expert as a condition to this matter going to trial.
5 Responses
Does the underlying peer review need to get into evidence?
People v. Trowbridge. I do not think so.
6o.25.
how else would the factfinder know you have the right guy?
and isnt thw repeer more in the line of a confirmatory identification?
CPL 60.25 is invoked when he witness cannot affirmatively identify the defendant and certain prerequisites are set forth. If the re-peer is relying on the original peer report and did not generate a report, then it would be cumulative and probably bolstering. If the adversary wants to put the peer in after the re-peer testifies, and the re-peer testifies is in accordance with the peer and he accepts its factual basis and medical rational as true, then it might come in as an inconsistent statement…
As usual Jason your complete and utter absence of knowledge of evidence rears its ugly head.
I am sure there was request for expert information in this case. Its in every template. And if the insurance company designated anyone it had to be the Peer Review Doctor.
If they failed to designate someone then they are out of luck.
Moreover if they designated the Peer Review Doctor and showed up with someone totally different — which experience tells me they did — then the expert is precluded from testifying.
That’s CPLR Jason. If you like I can give you and the App Term CPLR lessons — even just read it to you. Please make the arrangements with the Court.