Key Takeaway
Appellate Term reverses trial court's exclusion of substitute expert testimony in no-fault medical necessity case, with strong dissent on expert testimony scope.
Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 2012 NY Slip Op 50349(U)(App. Term 2d Dept. 2012)
“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 as to her opinion as to the medical necessity of the supplies at issue in this case, which testimony would be limited to the basis for the denial as set forth in the original peer review report (Radiology Today, P.C. v Progressive Ins. Co., 32 Misc 3d 144, 2011 NY Slip Op 51724 ; Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., 18 Misc 3d 128, 2007 NY Slip Op 52454 ; see also Psychology YM, P.C. v GEICO Gen. Ins. Co., 32 Misc 3d 130, 2011 NY Slip Op 51316 ).
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial on the limited issue.”
This is nothing new. Now the dissent:
“The admissibility and scope of expert testimony is a determination within the discretion of the trial court” (Christoforatos v City of New York, 90 AD3d 970 ). A defendant insurer in a no-fault case is limited to those defenses properly asserted within the time limits imposed by the rules of New York’s no-fault scheme. The facts at issue in a particular trial may also be limited by a judge’s ruling pursuant to CPLR 3212, as was done here. However, medical experts at trial should be able to bring their expertise to bear in a manner which amounts to more than simply regurgitating those facts included in the original peer review report.”
Second, while not directly addressed in the majority opinion, I wish to briefly discuss the implications of the Civil Court’s ruling pursuant to CPLR 3212 (g) whereby the court held that the issue of medical necessity would be the sole issue of fact to be determined at trial. A claim that billed-for services were not medically necessary is a defense available to a defendant insurer. However, in the present matter, both defendant and plaintiff presented arguments regarding the issue of medical necessity in reciprocal motions for summary judgment. In denying both motions and finding that a determination as to medical necessity required a trial, the Civil Court established that questions existed as to the medical necessity of the billed-for services, as well as defendant’s contrary claim.
Medical necessity is presumed upon the timely submission of a no-fault claim (see All County Open MRI & Diagn. Radiology P.C. v. Travelers Ins. Co., 11 Misc 3d 131, 2006 NY Slip Op 50318 ). Thus, ordinarily it falls to the defense to establish that the billed-for services were not medically necessary. Here, the motion court denied both plaintiff’s and defendant’s motions for summary judgment and set the only trial issue as to medical necessity. Thus, the presumption of medical necessity no longer exists in the present matter, and, as such, the rationale for burdening the defense with the argument no longer exists. As the law of this case has established that questions of medical necessity exist, it is only reasonable that plaintiff establish at trial that the billed-for services were medically necessary.”
I do not buy into the presumption of medical necessity. I never did.
Interestingly, Central General forced the presumption of causation on us. After this, the Appellate Term in Fogel and All County forced the presumption of medical necessity upon us.
Notwithstanding the above, this dissent is so on the money. If a court finds that dueling affidavits create an issue of fact, then it would appear that the issue of medical necessity, at trial, should fall on the provider since its presumption has evaporated.
The above being said, I know that the Appellate Division, if forced to grapple with this issue, would never buy into it the dissent.
One last thought. If nobody ever introduced the doctrine of the presumption of medical necessity, then this portion of the dissent would have no meaning since medical necessity would be assumed to always be an affirmative defense. However, those who have cheered about the “presumption of medical necessity” can now see what the side effect of this great presumption can become, when rebutted during motion practice, of course.
Related Articles
- Understanding Medical Necessity Denials: Escaping the Four Corners Rule in Long Island No-Fault Cases
- Civil Court Decisions in No-Fault Insurance: When Legal Reasoning Goes Wrong
- Why Conclusory Affidavits Fail: Building Strong Opposition to Medical Necessity Summary Judgment Motions
- Medical Necessity in No-Fault Insurance: Understanding the First Department’s Victory for Insurance Carriers
- New York No-Fault Insurance Law
Legal Update (February 2026): The standards for expert witness testimony in no-fault medical necessity cases may have evolved since 2012, particularly regarding substitute peer review experts and the scope of permissible testimony. Practitioners should verify current appellate decisions and any procedural rule amendments that may affect expert witness requirements in no-fault litigation.
