Drew De Marco, P.C. v Allstate Ins. Co., 2013 NY Slip Op 52212(U)(App. Term 1st Dept. 2013)
“[d]uring Dr. Portnoy’s redirect testimony, the trial court precluded the witness from testifying as an expert on MUA procedures based on his acknowledgment that he was not certified to perform MUA. The Court thereupon directed a verdict in favor of plaintiff.”
“Dr. Portnoy was qualified as a chiropractic expert. Thus, he need not have been certified as an MUA specialist to offer an opinion as to the medical necessity of the MUA procedures here at issue (see Matter of Solano v City of Mount Vernon, 108 AD3d 676, 677 [2013]). His lack of certification in this area goes to the weight to be accorded his testimony, not its admissibility (see Borawski v Huang, 34 AD3d 409, 410 [2006]).” New trial ordered.
This was the situation in Solano:
“Here, the hearing officer’s determination is supported by substantial evidence. The petitioner first contends that Dr. Silverman was not qualified to give an opinion. However, we have held that, “[o]nce a medical expert establishes his or her knowledge of the relevant standards of care, he or she need not be a specialist in the particular area at issue to offer an opinion” (Texter v Middletown Dialysis Ctr., Inc., 22 AD3d 831, 831 [2005]). Here, upon stipulation, Dr. Silverman was qualified as a medical expert. Thus, he need not have been a specialist to offer an opinion as to the petitioner’s condition. Moreover, contrary to the petitioner’s arguments, Dr. Silverman’s testimony was consistent and supported by the medical evidence. The hearing officer was free to credit Dr. Silverman’s testimony more than the testimony of the petitioner’s treating physician and chiropractor”
So, even though Dr. Portnoy does not engage in voodoo MUA, his testimony could establish a prima facie lack of medical appropriateness if his testimony is consistent and supported my medical evidence. I think Solano is something to look into in the arbitration context when someone other than Cerf, Sposta or Sntkoff is your expert.
2 Responses
This really comes down to a mistake in the judge’s wording. Instead of finding the testimony inadmissible, he should have found that the expert failed to establish a prima facie defense of a lack of medical necessity.
This is a Wang Chung. Corrupt Communist Offiwials that are judges would have changed outcome in favor insurance compwany secret polwice no matter what lower court say.
Insurance compwany bucko bucks buy judges say Sun Tzu.