Key Takeaway
Court rules medical experts don't need literature citations to establish treatment deviation in no-fault cases, relying on professional experience instead.
Medical Expert Opinions: Experience Trumps Literature Citations
In no-fault insurance disputes, medical experts often clash over whether treatments deviate from accepted standards. Insurance companies frequently challenge medical necessity by demanding that opposing experts cite specific medical literature, studies, or professional guidelines to support their opinions. However, a significant First Department ruling clarifies that such citations are not required for valid expert testimony.
The Mitrovic v Silverman decision addresses a fundamental question in New York no-fault insurance law: what constitutes sufficient foundation for a medical expert’s opinion regarding treatment deviation? This ruling has important implications for practitioners handling medical necessity reversals and defending against insurance company denials.
Jason Tenenbaum’s Analysis:
Mitrovic v Silverman, 2013 NY Slip Op 01465 (1st Dept. 2013)
“While an expert affidavit cannot be speculative, there is no threshold requirement in an ordinary case, not involving a novel scientific theory, that a medical opinion regarding deviation be based upon medical literature, studies, or professional group rules in order for it to be considered. It can be based upon personal knowledge acquired through professional experience (see Diaz v New York Downtown Hosp., 99 NY2d 542, 545 ; see also Limmer v Rosenfeld, 92 AD3d 609, 609 ). The peer review article upon which defendants rely did not form a basis for their expert’s opinion because it was only submitted in defendant Dr Silverman’s reply paper’s. Moreover, such literature only affects the weight given to an expert’s opinion and does not dictate an outcome as a matter of law (see Marsh v Smyth, 12 AD3d 307, 311-313 , Saxe, J. concurring).
Now maybe I am stretching, but is reliance on “Nir” as the only reason to defeat a medical necessity denial now arbitrary and capricious?
Key Takeaway
Medical experts can establish treatment deviation based solely on their professional experience without citing medical literature or studies. While peer-reviewed articles may influence the weight of expert testimony, they cannot determine legal outcomes by themselves. This principle strengthens the position of medical providers when a copy of a peer report is all that is needed to challenge insurance denials.
Legal Update (February 2026): Since this 2013 post, New York’s no-fault regulations and medical necessity standards may have been modified through regulatory amendments or appellate court decisions that further clarify expert testimony requirements. Practitioners should verify current provisions regarding medical expert qualification standards and foundation requirements under the most recent Insurance Law regulations and case precedent.
