A-Quality Med. Supply v GEICO Gen. Ins. Co., 2013 NY Slip Op 23088 (App. Term 2d Dept. 2013)
“The Insurance Department Regulations require merely that a “copy” of a peer review report be produced to a provider upon written demand…. Moreover, the Insurance Department Regulations do not prescribe a format for a peer review report. It is only when a peer review report is being submitted in support of or in opposition to a motion that it must be properly sworn or affirmed (see CPLR 3212 [b])”
…
“We note that, at trial, the issue of medical necessity is to be resolved based upon the testimony given by medical experts. A peer review report, unlike a witness, is not subject to cross-examination and is not admissible by defendant to prove lack of medical necessity. Indeed, admission of a peer review report into evidence as part of a defendant’s proof of lack of medical necessity may constitute impermissible bolstering of its expert’s testimony”
So, the peer review itself, if admitted into evidence, constitutes improper bolstering. Also, “admissible form” is limited to a motion for summary judgment in opposition to a motion thereto.
8 Responses
Jason, I think you missed something in this one. The 2nd Dept say that the re-peer cant get the peer review report into evidence. I do not believe this case suggests that a copy of the peer review is all that is needed. This case presents real problems for re-peer testimony.
But you do not need to get the peer into evidence. Call it s a Trowbridge violation.
Perhaps, perhaps not. This decision says that the peer report doesn’t come in. That means that the basis of the denial does not come into evidence.
At your next criminal trial JT, when the ADA says that he lost the gun that that killed the victim, but he has one that looks just like it, I suppose that comes into evidence to support the manslaughter charge. I mean, wont any gun do?
So, in NF, the re-peer doctor can come up with any reason so to deny a claim based on a lack of medical necessity, never furnish a report on the topic, never inform the insured of rationale, and the denial is meaningless when it says that the claim is denied by the peer review conducted by Dr. Mxyztplk. Oh my stars and garters! Captain America, help ….
But cf Smith v. Uranus Dewey Cheatem and Howe Ins. Co. The App Term 2nd said that Court’s should be free to think of anyway possible to assist and insurance company in defrauding a tax paying consumer.
You don’t need to get the peer into evidence, but the App Term also says re-peer testimony must be limited to the 4 corners of the original peer review report. I suspect this will be interpreted in different ways by different judges in the 2nd Dept – both Defendants and Plaintiffs may feel the pain of this one
When the sole issue for trial is the lack of medical necessity of the services rendered then any medical doctor will suffice
Plaintiff’s who do not make a good record and accept sloppy orders at the special term are to blame for this and they get what they deserve
But the issue at trial isn’t supposed to be the medical necessity of the services. The services could be the application of leeches or cranial trepanation to allow demons to escape. The issue at trial is SUPPOSED to be (and I stress supposed because I know it doesn’t actually work out this way) whether or not the insurer properly denied the claim within 30 days. “Properly” meaning a timely peer review that contains both a factual basis and medical rationale.
Allowing a re-peer doctor, or even the actual peer doctor himself, to say anything on the stand that’s not in the original peer review is giving the insurer a second opportunity to deny the claim.
I know Joe but as I stated:
“cf Smith v. Uranus Dewey Cheatem and Howe Ins. Co. The App Term 2nd said that Court’s should be free to think of anyway possible to assist an insurance company in defrauding a tax paying consumer.”
Uranus was written by Golia and joined by Justice Joe Pesce and Justice Condelezza Weston