Why Trust This Analysis
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.
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)
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“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.
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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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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.
