Key Takeaway
Radiology Today's 2011 appeal restored a substitute doctor's opportunity to testify. Read the new-trial order and distinguish it from Jason's proposed remedy.
This article is part of our ongoing medical necessity coverage, with 170 published articles analyzing medical necessity issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
The substitute doctor should have been heard. In Radiology Today, P.C. v Progressive Insurance Co., decided September 16, 2011, the Appellate Term reversed a provider’s judgment after the Civil Court excluded the insurer’s medical expert before any defense witness testified. The expert had not written the original peer review.
The appeal produced a new trial, not dismissal of the provider’s complaint. The court left open whether the written peer review itself could be admitted. Those distinctions matter when reading Jason’s proposed order below.
What the ruling actually decided
The trial had been limited to medical necessity under CPLR 3212(g). Excluding the substitute doctor prevented the insurer from presenting that defense. The appellate court corrected the exclusion without deciding which side should ultimately win.
The later Radiology Today v GEICO decision (2017) addresses the separate evidence problem: a peer review is not trial proof of the truth of its conclusions, but that does not prevent an expert from testifying. It also requires an appropriate objection if testimony exceeds the original basis for denial. Getting the doctor on the stand left the medical dispute to be tried.
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Jason’s original comment
Jason’s September 2011 comment proposed a different remedy and discussed his view of the expense. Those existing historical figures and his accusation of frivolousness are commentary, not the court’s order or findings.
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.
Historical note: Radiology Today’s September 2011 decision ordered a new trial after exclusion of a substitute expert; Radiology Today v GEICO (2017) later distinguished report admissibility, testimony scope and trial burdens. Last reviewed: September 2026.
Connect to the Encyclopedia
- Medical necessity: opinions, claim timing and related cases
- Substitute testimony and a separate concurrence: Park Slope
- Independent expert testimony supported dismissal: All Borough
- A provider’s MUA win after competing testimony: Westcan
- Timely denials and an unsupported attorney affirmation: Diagnostic Medicine
For review of a particular denial or litigation record, contact the firm or see the no-fault defense practice.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Medical Necessity Disputes in No-Fault Insurance
Medical necessity is the most common basis for no-fault claim denials in New York. Insurers hire peer reviewers to opine that treatment was not medically necessary, shifting the burden to providers and claimants to demonstrate otherwise. The legal standards for establishing and rebutting medical necessity — including the sufficiency of peer review reports, the qualifications of reviewing physicians, and the evidentiary burdens at arbitration and trial — are the subject of extensive case law. These articles provide detailed analysis of medical necessity litigation strategies and court decisions.
170 published articles in Medical Necessity
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a medical necessity matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
