All Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co., 2012 NY Slip Op 50137(U)(App. Term 2d Dept. 2012)
Point I: “The case was tried on December 8, 2010. At trial, plaintiff and defendant stipulated in writing to plaintiff’s prima facie case, defendant’s timely denials, admission of the expert witness disclosure package, which included the peer review report and medical records reviewed, and that the only issues for trial were lack of medical necessity and fees not in accordance with fee schedules.”
Point II: “Plaintiff rested, relying on the stipulation that it had established its prima facie case. Defendant’s witness was unavailable, and defendant moved to adjourn the trial to a later date to call a witness. Since defendant failed to show good cause, the application to adjourn was denied (NY City Civ Ct Act § 1302 [a]). Plaintiff then moved for a directed verdict on the ground that defendant was not ready to proceed and could not establish its defenses (CPLR 4401). Relying on the stipulation, defendant opposed plaintiff’s motion and cross-moved for a judgment in its favor on the ground that it established timely and proper denials, and that the peer review report and medical records were in evidence.”
(At this point court cites to the Nir test of medical necessity)
“The court acknowledges there are circumstances where a live witness would be required to embellish defendant’s position. Here, the court finds defendant was not required to present an expert witness to testify at trial, particularly since plaintiff did not offer a witness or any evidence whatsoever on rebuttal. Accordingly, the court finds defendant successfully proved lack of medical necessity for four of the tests administered and the related explanation and interpretation of results.”
A true trial on papers…. Remember when the Court in S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 2008 NY Slip Op 51537(U)(App. Term 2d Dept. 2008) granted judgment in favor of Defendant based upon a deposition of Defendant’s expert? Interesting nuance.
4 Responses
I guess in retrospect, maybe it wasn’t the best idea to oppose the defendant’s application for an adjournment?
Buyers remorse.
According to this, both sides could stip to a medical necessity trial solely based on the papers.
Consider it arbitration through the courts.