Another substitute peer case finds it way back on remand – but the dissent is potent

The separate opinion was a concurrence, not a dissent. In Park Slope Medical & Surgical Supply v Progressive Insurance Co., decided February 21, 2012, all three judges agreed to reverse the provider’s judgment and send the case back for a new trial. Justice Golia wrote separately about expert testimony and the burden of proving medical necessity.

The majority held that the substitute medical expert should have been permitted to testify, within the original peer review’s basis for denial. It did not adopt every proposition in Golia’s separate memorandum.

Read the majority and concurrence separately

Golia questioned an unduly narrow reading of the restriction on expert testimony. He also proposed that, after the competing summary-judgment submissions had left medical necessity for trial, the provider should have to establish necessity. That discussion must be attributed to his concurrence.

Later authority supplies a more precise trial-burden statement. Dayan v Allstate (2015) describes the insurer’s initial burden to rebut the presumption of medical necessity and the provider’s ultimate burden once the insurer succeeds. It ordered a new trial because the Civil Court had put the ultimate burden on the insurer.

The 2017 Radiology Today decision repeats that distinction and cites this Park Slope decision on the scope of expert testimony. It does not support treating the mere denial of competing motions as proof that the insurer has satisfied its trial burden.

Jason’s original comment

Jason’s March 2012 comment is preserved as originally written. Its references to a “dissent” describe Golia’s concurrence, and its burden-shifting argument is a historical position, not the majority holding or a statement of the later Dayan rule.

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.

Legal Update: Dayan v Allstate (2015) distinguishes the insurer’s initial trial burden from the provider’s ultimate burden after that showing; it should replace reliance on this 2012 note’s prediction that competing motion papers automatically eliminate the presumption. Last reviewed: September 2026.

Connect to the Encyclopedia

• Medical necessity: opinions, claim timing and related cases
• Excluding a substitute expert led to a new trial: Radiology Today (2011)
• Independent expert testimony supported dismissal: All Borough
• A provider’s MUA win after competing testimony: Westcan
• Unopposed and inadequately opposed motions: two Nassau appeals

For review of a particular denial or litigation record, contact the firm or see the no-fault defense practice.