Key Takeaway
Promed's 2017 appeal allowed a substitute expert and required a new trial on one equipment claim. The report's evidentiary purpose and objections mattered.
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.
A substitute expert could testify in Promed Orthocare. The provider needed an appropriate objection if that testimony exceeded the denial’s basis; the missing original peer report did not justify disregarding the witness.
Historical note: Promed Orthocare (August 4, 2017) ordered a new trial on the cervical-traction claim only; the decision came from the Second Department’s Appellate Term, not the First.
Last reviewed: September 2026.
One claim returned for trial
The August 4, 2017 decision came from the Second Department’s Appellate Term. The appeal concerned the second cause of action, for a cervical traction unit. The court ordered a new trial on that claim; it directed entry of the provider’s judgment on the first claim with interest and attorney’s fees to be calculated.
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The court distinguished using a peer report to prove the defense at trial from producing it when necessary to challenge testimony exceeding the denial’s basis. The provider had not made an appropriate objection here. Refusing to consider the substitute witness because the original report was not admitted was error. Read Promed Orthocare.
Jason’s shorthand below needs that evidentiary distinction. The case does not prohibit every use of a report or all judicial intervention.
Jason’s original comment
Jason’s October 2017 shorthand follows unchanged. Read it with the distinctions above: using the report to prove the defense is different from producing it to frame an objection. The decision does not prohibit all judicial intervention or authorize unlimited expert testimony.
Here are some interesting rules (enunciated again). First, the peer report never goes into evidence. Second, the expert (whomever it is) can say what (s)he wants subject to an objection that is oversteps the utilization review. Third, the Court cannot act sua sponte.
Connect to the Encyclopedia
- Medical necessity: case directory and related decisions
- Dayan: a new trial under the correct burden of proof
- Surgicare: the trial court rejected the surgery expert’s reasoning
- Elmont Open MRI: why the purpose of treatment records mattered
- Healing Art: medical necessity was outside the moving papers’ issues
For review of a particular no-fault dispute, contact the firm with the denial, relevant records and procedural history.
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.
