Key Takeaway
Jason's 2016 question about substitute IME testimony, distinguished from later peer-review decisions and Diagne's accident-reconstruction discovery ruling.
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Jason’s 2016 question was about a doctor repeating another examiner’s physical findings at trial. It was not a report of an appellate ban on substitute experts. The distinction he drew between a hands-on IME and a review of records is the point to preserve.
Historical note: Jason’s March 2016 objection below is his opinion, not a holding; Diagne (2015) concerned accident-reconstruction discovery, while Promed (2017) later permitted substitute peer-review testimony on the trial record before it.
Last reviewed: September 2026.
Two decisions to keep separate
Diagne v J.T.S. Trucking (2015) involved an accident reconstructionist, not a no-fault IME. The First Department allowed a second tractor-trailer inspection after the original expert resigned. It would not assume the new expert could use prior findings whose content and reliability were absent from the record.
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In Promed Orthocare Supply v GEICO (2017), the Appellate Term, Second Department ordered a new trial on the cervical-traction claim. The insurer’s expert could testify despite not having written the peer review. The provider had not made the appropriate objection to testimony exceeding the denial’s basis.
For an IME dispute, identify which findings the new doctor proposes to use and how their reliability will be established. Promed’s peer-review result does not answer every objection to secondhand physical-examination findings.
Jason’s original comment
Jason’s March 2016 request for colleagues’ views follows unchanged. His proposed exceptions and percentages express his own assessment, not a court’s test. The record-only peer-review decisions do not settle every objection involving another doctor’s physical examination.
I am going on record with my personal opinion that an insurance carrier at trial or framed issue hearing should not generally be able to substitute IME doctors, with two caveats. First, if a peer doctor relies upon an IME among other records, then under the professional reliance exception to hearsay, the IME should be considered. Second, if the IME is more of a peer review, then a substitute doctor would be proper. But, if the IME reaches a conclusion based upon 98% evaluation and 2% record review (the normal IME), it seems like blatant hearsay if some other doctor is retained to testify.
What triggered this post? I understand that some firms are using substitute IME doctors and judges are allowing this practice.
What judges and Courts are allowing this? Thanks
-Jason
Connect to the Encyclopedia
- Medical necessity and peer review: topic hub
- PSW Chiropractic: credibility at a nonjury trial
- Amato: the 2010 trial ruling and its 2013 reversal
- Amherst: identify the missing medical information
- Triangle R: defective DME opposition
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Legal Context
Why This Matters for Your Case
New York's no-fault insurance system, established under Insurance Law Article 51, is one of the most complex insurance frameworks in the country. Every motorist must carry Personal Injury Protection coverage that pays medical expenses and lost wages regardless of fault, up to $50,000 per person.
But insurers routinely deny valid claims using peer reviews, EUO scheduling tactics, fee schedule reductions, and coverage defenses. The Law Office of Jason Tenenbaum has handled over 100,000 no-fault cases since 2002 — from initial claim submissions through arbitration before the American Arbitration Association, trials in Civil Court and Supreme Court, and appeals to the Appellate Term and Appellate Division. Jason Tenenbaum is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
His 2,353+ published legal articles on no-fault practice are cited by attorneys throughout New York. Whether you are dealing with a medical necessity denial, an EUO no-show defense, a fee schedule dispute, or a coverage question, this article provides the kind of detailed case-law analysis that helps practitioners and claimants understand exactly where the law stands.
About This Topic
New York No-Fault Insurance Law
New York's no-fault insurance system requires every driver to carry Personal Injury Protection (PIP) coverage that pays medical expenses and lost wages regardless of who caused the accident. But insurers routinely deny, delay, and underpay valid claims — using peer reviews, IME no-shows, and fee schedule defenses to avoid paying providers and injured claimants. Attorney Jason Tenenbaum has litigated thousands of no-fault arbitrations and court cases since 2002.
271 published articles in No-Fault
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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.
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