Key Takeaway
New York appeals court rules that substitute expert witnesses can testify in no-fault insurance cases even when they didn't prepare the original peer review report.
In New York no-fault insurance litigation, disputes over medical necessity frequently center on peer review reports and expert testimony. A common tactical issue arises when insurance companies hire substitute expert witnesses who didn’t prepare the original peer review report that formed the basis of their claim denial. The question becomes: can these substitute experts testify about conclusions they didn’t personally reach?
The Appellate Term’s decision in Radiology Today, P.C. v Progressive Ins. Co. provides important guidance on this evidentiary issue. This ruling affects how both healthcare providers and insurance companies prepare their cases involving medical necessity reversals and expert witness testimony.
Jason Tenenbaum’s Analysis:
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, 2011 NY Slip Op 51316 ; Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., 18 Misc 3d 128, 2007 NY Slip Op 52454 ). 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.
Key Takeaway
The Appellate Term clarified that substitute expert witnesses can testify even when they didn’t prepare the original peer review report. This ruling protects insurance companies from frivolous evidentiary challenges that could otherwise prevent legitimate expert testimony and unnecessarily increase litigation costs in no-fault cases.
Legal Update (February 2026): Since this 2011 decision, New York’s no-fault insurance regulations and procedural rules governing expert testimony and peer review processes may have been modified through regulatory amendments or updated court precedents. Practitioners should verify current provisions regarding substitute expert witness testimony and any changes to evidence standards in medical necessity disputes before relying on this analysis.
