Evidence

Civil Court overturns Appellate Term precedent

By Jason Tenenbaum | March 13, 2012 | 8 min read

Key Takeaway

Civil Court overturns Appellate Term precedent on no-fault peer review expert testimony, ruling original peer reviewer must testify at trial

Park Slope Med. & Surgical Supply, Inc. v Metlife Auto & Home, 2012 NY Slip Op 22064 (Civ. Ct. Queens Co. 2012)

“In any event, where the denial of a no-fault claim is based on a peer reviewer’s finding of a lack of medical necessity, upon an ensuing trial on that issue, the expert whose opinion is most critical is the author of peer review report**. In fact, even in its decisions ruling that an expert who is not the original peer reviewer should be permitted to testify, the Appellate Term has said that such expert’s opinion should be “limited to the basis for the denial as set forth in the original peer review report.” (See Park Slope Med. & Surg. Supply v Progressive, ___ Misc 3d ____ , 2012 NY Slip Op 50349 , supra; Radiology Today, P.C., 32 Misc 3d 144, supra; Dilon, 18 Misc 3d 128, supra.) However, if the peer review report is not in evidence, the parameters of such report, including the reasons given for the denial, are not a matter of record, and for purposes of trial, are unknown.”**

The peer report is a medical based document that makes conclusions based upon assumptions that are presented in the Assignor’s medical history. The peer report is itself redundant and should not be admitted into evidence since it constitutes improper bolstering of the underlying expert testimony.

Testimony that runs consistent with the peer report should be admissible.

10-1 odds this gets reversed. The backlog of cases at the App Term is about 2-3 years, so we will not get an answer until the middle of this decade. Heaven knows how much more appellate work the defense bar will egage in until this issue is “resolved” (again).

Filed under: Evidence Experts Hearsay

About the Author

Jason Tenenbaum

Jason Tenenbaum is a personal injury attorney serving Long Island, Nassau & Suffolk Counties, and New York City. Admitted to practice in NY, NJ, FL, TX, GA, MI, and Federal courts, Jason is one of the few attorneys who writes his own appeals and tries his own cases. Since 2002, he has authored over 2,353 articles on no-fault insurance law, personal injury, and employment law — a resource other attorneys rely on to stay current on New York appellate decisions.

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Discussion

Comments (17)

Archived from the original blog discussion.

Kurt Lundgren Mar 13, 2012

Cant wait to hear what Mitch says about this one!!!

Alan Klaus Mar 13, 2012

I think this decision should be commended. It is based on actual evidentiary rules and is correct. Seems like the plaintiff bar is getting some good decisions lately.

Larry Rogak Mar 13, 2012

25 years ago I worked with a crusty old litigator who had a lot of maxims that he would drop into conversations. One of them was “I never hesitate to overrule the Court of Appeals.”

Plaintiff Attorney Mar 13, 2012

The decision is correct on the law. What rule of evidence allows a sub peer to get in a document that was not created by him/her? C’mon.

trial lawyer Mar 14, 2012

Lets face it. If the Appellate Term can overule the Appellate Division, why can’t a Civil Court overule the Appellate Term? I can’t wait to hear the “guidance” to be offered by the Term. It will probably begin with forget everything you learned in law school about hearsay!

Raymond Zuppa Mar 14, 2012

Mr. Klaus and Mr. Plaintiff attorney said it better then I can.

Jerry Maline Mar 15, 2012

The Decision is only correct based upon the arguments presented but not on the facts. The substitute Peer Doctor’s Opinion is not based upon the Original Peer report but the medical records of the injured party which should be admitted into evidence as an exception to the hearsay rule. The substitute Peer Doctor is subject to Cross examination. The original Peer Report can be used in Cross examination to show the substitute Peer went beyond the original Peer report thus impeaching the substitute Peer and preventing the Defendant from reaching their burden of showing the lack of medical necessity.

nycoolbreez Mar 15, 2012

how does that work at trial? Q. Isn’t it true Dr Y that Dr X said blah blah blah regarding these services in his peer review? D Counsel: Objection! Court: Overruled, if he knows he can answer. Dr do you know what Dr X said in his peer review? a. uh, I don’t know what he said in his peer review Q. Well Dr Y didn’t you read Dr. X’s peer review before testifying? a. uh, no because as jerry maline told me before i took the stand my opinion is not based upon the original Peer report but the medical records of the injured party so I did not read Dr. X’s peer review. Q. So you have no idea what Dr. X said in his peer review? Court: He already said he did not read the underlying peer review move on counselor. P attorney: But wait judge you mean I cannot use this third party statement to impeach the testifying witness? Court: No counselor it is not his statement, move on. P attorney but wait judge this is what the defendant issued with their denial; they are limited to this basis as a defense, not what this dr is saying today. Court: that is nice counselor how do you expect to get that UNSWORN third party statement into evidence? do you have any more questions for this witness?

Kurt Lundgren Mar 16, 2012

nycoolbrez is right on point. Also,a subsitute peer is a misnomer. He is not there to substitute his or her opinion for that of the original peer review. He is there to explain the original report. He cannot do that if the report is not in evidence. Its that simple.

Joe Armao Mar 16, 2012

This is what always bothered me about the sub peer thing. The usefulness of a sub peer doctor at trial – and his ability to testify about anything relevent – is predicated entirely on the plaintiff stipping the original peer review into evidence. No stip, no peer report in evidence. Then all the Defendant has is a conclusory denial that states the services lacked medical necessity, with no peer to back up that denial, and no way to get the peer in. Cross examining the sub peer doctor is entirely irrelevant if the peer review report the denial was based on doesn’t get in.

Ray Zuppa Mar 16, 2012

NYCoolBreeze I have the answer. Cite Malline on No Fault: A Treatise Endorsed by the Appellate Term, Chapter 1, Section 1, Page 1. “In no fault the law does not matter …” Leave out the part of the quote that says “… if you are an insurance company.”

trial lawyer Mar 19, 2012

There is a Judge in the Bronx that takes every opportunity to enforce the 4 corners rule on subs. He tells the Doctors they are “parrots” when they stray too far. I laugh everytime he says it.

SB Mar 19, 2012

Riddle me this: On what basis does a peer review report that contains quotations from out of court literature, being offered for the truth of the matter asserted, come in unredacted?

Ray Zuppa Mar 19, 2012

There is actually a rule of evidence that covers that. Once again this demonstrates that the rules are beautifully crafted. Of course we need a foundation. If the expert establishes himself as an expert in a field then he/she can lay the foundation for literature in their field of expertise. The magic words: “learned treatise.” Such a shame that those who practice solely in no fault will never learn such things. Of course when you cross an expert that expert will not deem anything to be a learned treatise. Good. Throw everything in the world at the expert from Grey on Anatomy to the New England Journal of Medicine. “so none of these materials qualify as learned treatises?” “So you are the only learned treatise in the world.” It works well i/f/o a jury. In a bench trial in Civil Queens the Judge will probably tell you to end the cross.

SB Mar 21, 2012

For cross-examination, yes, there is a recognized rule. But I am talking about on direct. For bolstering the expert’s witness on direct, no, there is no such rule in New York. There is no NY exception or exemption for this.

Damin J. Toell Mar 21, 2012

In a New York State Court, you won’t get far with a “learned treatise” argument. But you may want to make a “professionally reliable” argument, which can include scientific publications.

Jason Tenenbaum Author Mar 21, 2012

Gosh Batman when you put it that way… but why don’t the quotes get in for their truth because they are relied upon to form the opinion?

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Civil Court overturns Appellate Term precedent

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