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.
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.
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.
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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Feb 3, 2012Common Questions
Frequently Asked Questions
What is a medical necessity denial in no-fault insurance?
A medical necessity denial occurs when the insurer's peer reviewer determines that treatment was not medically necessary based on a review of the patient's medical records. The peer reviewer writes a report explaining why the treatment does not meet the standard of medical necessity. To challenge this denial, the provider or claimant must present medical evidence — typically an affirmation from the treating physician — explaining why the treatment was necessary and rebutting the peer review findings.
How do you challenge a peer review denial?
To overcome a peer review denial, you typically need an affirmation or affidavit from the treating physician that specifically addresses and rebuts the peer reviewer's findings. The treating physician must explain the medical rationale for the treatment, reference the patient's clinical findings, and demonstrate why the peer reviewer's conclusions were incorrect. Generic or conclusory statements are insufficient — the response must be detailed and fact-specific.
What criteria determine medical necessity for no-fault treatment in New York?
Medical necessity is evaluated based on whether the treatment is appropriate for the patient's diagnosed condition, consistent with accepted medical standards, and not primarily for the convenience of the patient or provider. Peer reviewers assess factors including clinical findings, diagnostic test results, treatment plan consistency with the diagnosis, and whether the patient is showing functional improvement. Treatment that is excessive, experimental, or unsupported by objective findings may be deemed not medically necessary.
Can an insurer cut off no-fault benefits based on one IME?
Yes, an insurer can discontinue benefits after a single IME doctor concludes that further treatment is not medically necessary or that the claimant has reached maximum medical improvement. However, the IME report must be sufficiently detailed and the denial must be issued within 30 days under 11 NYCRR §65-3.8(c). The treating physician can submit a rebuttal affirmation explaining why continued treatment is necessary, forming the basis for challenging the cut-off at arbitration.
What is a peer review in no-fault insurance?
A peer review is a paper-based evaluation where a licensed medical professional reviews the patient's records and renders an opinion on whether the billed treatment was medically necessary. Unlike an IME, the peer reviewer does not examine the patient. The peer review report must be detailed, address the specific treatment at issue, and explain the medical rationale for the opinion. Generic or boilerplate peer reviews that fail to address the patient's individual clinical presentation may be found insufficient.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
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.
