All Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 2013 NY Slip Op 50252(U)(App. Term 2d Dept. 2013)
Prior trial testimony was plainly insufficient to rebut the peer review. Also, a letter of medical necessity was found not to be sufficient to rebut defendant’s prima facie showing. Compare: Quality Psychological, P.C. v. Mercury.
“On appeal, plaintiff argues, among other things, that it raised a triable issue of fact as to the medical necessity of the psychological testing at issue by submitting a letter of medical necessity and the prior trial testimony of a Dr. Franklin Porter. However, the letter of medical necessity did not meaningfully refer to, let alone rebut, the conclusions of defendant’s [*2]psychologist (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and Dr. Porter’s testimony has no relevance to the peer review report at issue in this case. While Dr. Porter testified generally, in an unrelated trial, that certain psychological tests have utility, the peer review report relied upon by defendant in this case concluded that they were not medically necessary under the factual circumstances presented by this case. Plaintiff’s remaining contentions on appeal are without merit and/or unpreserved for appellate review.
