Atlantic Radiology Imaging, P.C. v GEICO
Annotate this CaseDecided on December 18, 2013
Civil Court of the City of New York, Kings County
Atlantic Radiology Imaging, P.C. A/A/O Stonys Kestutis et al, Plaintiff,
against
GEICO, Defendant.
Atlantic Radiology Imaging, P.C. A/A/O Brittney Buckner Plaintiff,
against
GEICO Defendant.
Atlantic Radiology Imaging, P.C. A/A/O Aminov Anzor Plaintiff,
Atlantic Radiology Imaging, P.C. A/A/O Joseph Herbert Plaintiff,
113326-10/KI
Attorneys for Plaintiff:
Gary Tsirelman, P.C.
65 Jay St. 3d Floor
Brooklyn, NY 11201
Attorneys for Defendant:
Law Office of Korshin & Welden
170 Froehlich Farm Blvd.
Woodbury, NY 11797
Katherine A. Levine, J.
The issue raised at trial in a number of cases is whether a doctor, other than the original doctor who prepared the peer review report ("re peer doctor"), may be permitted to testify as an expert witness when the peer review report and underlying medical records relied upon therein have not been stipulated into evidence. Assuming that the re peer doctor is allowed to testify, the next issue raised is whether the underlying records can be admitted into evidence.
It is well established that a re peer expert may testify even if he did not personally undertake the peer review since his testimony as to lack of medical testimony is subject to full cross examination at trial and is limited to the basis for denial contained in the original peer review report. Metropolitan Medical Supplies LLC v. Geico. 2012 NY Slip Op. 51490(U), 36 Misc 3d 141(A) (App. Term, 2d Dept. 2012); Park Slope Medical & Surgical Supply, Inc. v. Progressive Ins. Co., 2011 NY Slip Op 52300(U), 34 Misc 3d 129(A) (App. Term, 2d Dept. 2011); Home Care Ortho. Med. Supply, Inc. v. American Manufacturers Mutual Ins Co., 2007 NY Slip Op 50302(U), 14 Misc 3d 139(A) (App. Term, 1st Dept 2007).
The fact that the peer review report is not admissible for the truth of the matter asserted there in at the trial does not change this dynamic. The standards governing the admissibility of a peer review report are different at the summary judgment stage as opposed to the trial stage. The Insurance Regulations do not "prescribe a format for a peer review report." The peer review only must be properly affirmed or sworn when it is submitted in support of or in opposition to a motion for summary judgment. A-Quality Med. Supply v. GEICO, 39 Misc 3d 24, 26 (App. Term 2d Dept 2013); Psychology YM, P.C., v. Geico, 2011 NY Slip Op 51316(U), 32 Misc 3d 130(A) (App. Term, 2d Dept. 2011). At trial, a peer review report is not admissible to prove the lack of medical necessity "since a peer review report, unlike a witness, is not subject to cross examination." A-Quality Med. Supply v. GEICO, supra, 39 Misc 3d at 26. Rather, medical necessity is to be resolved by the testimony of the medical expert concerning the factual basis and medical rationale for his opinion. Alev Medical Supply Inc. v. GEICO, 2013 NY Slip Op 51096(U), 40 Misc 3d 128(A) (App. Term, 2d Dept. 2013). The peer review report just serves as a template to define and limit the parameters of the doctor's testimony.
Having established that a re peer doctor can testify because his opinion is subject to cross examination, the precedent governing the admissibility of medical records prepared by plaintiff [*2]or other medical providers, applies with equal force to both the original and re peer doctors. The hypothetical underpinning of medical necessity within the no fault context has previously been addressed by the Appellate Term, in both the seminal case Urban Radiology v. Tri State Consumer Ins. Co., 2010 NY Slip Op 50987(U), 27 Misc 3d 140(A) (App. Term, 2d Jud. Dist. 2010) and in Park Slope Medical & Surgical Supply, Inc. v. Travelers Ins. Co.,37 Misc 3d 19 (App. Term, 2d Dept. 2012). The Appellate Term rejected the medical provider's contention that an insurer had to consider plaintiff's case in a vacuum unless the insurer if could prove the medical facts underlying the claim. "A no fault provider cannot know with certainty, merely based upon reviewing medical records, what injuries a patient sustained or how he was treated - it can only act on what it has been told." Park Slope Medical, supra, 39 Misc 3d at 374. Thus, "in denying a claim for lack of medical necessity based upon a peer review report, an insurer is not seeking to establish the truth of the facts set forth in the medical documentation submitted to it," i.e. that the assignor was in fact injured or treated as set forth in the records. Rather, the insurer is merely stating that assuming that the facts contained in the medical documentation are true, it need not pay the claim. Id. at 374. See Urban Radiology, supra, at 3. See also, Alfrof Inc. v. Progressive, 34 Misc 3d 29 (App. Term, 2d Jud. Dist. 2011). As these medical records are not being utilized for their truth, but merely to demonstrate that the information therein has been conveyed to the defendant, the plaintiff's argument that the insurer failed to establish the reliability of the underlying medical records was irrelevant. Urban Radiology supra at 4-5.
This ruling is consistent with the well established precedent that a peer reviewer may consider medical records from the plaintiff provider as well other medical providers who treated the injured party assignor. A plaintiff medical provider cannot be heard to challenge the reliability of its own medical records. PLP Acupuncture (Hernandez) v. Progressive, 2009 NY Slip Op 50491(U), 22 Misc 3d 142(A) (App. Term, 2d Dept. 2009). See, Cross Cont. Medical P.C. v. Allstate, 13 Misc 3d 10 (App. Term, 1st Dept. 2006). As to medical records from other providers who treated the assignor injured party, plaintiff, as assignee, stands in the shoes of the assignor and acquires no greater rights to object to the records than its assignor. Urban Radiology, supra at 3. See, Zeldin v Interboro Mutual Ins. Co. 44 AD3d 652 (2d Dept. 2007); Long Island Radiology v. Allstate Ins. Co., 36 AD3d 763 (2d Dept. 2007).
Since the purpose of the underlying records is to form a hypothetical basis upon which a peer reviewer can express an opinion, and the defendant insurer has no obligation to admit the underlying records in for the truth of the matter asserted, it is irrelevant whether the original peer reviewer or the re peer doctor looks at the records to formulate an opinion. Neither doctor has any actual knowledge as to the reliability of the underlying records and any flaw or inconsistency in these records can be brought to the fore through cross examination of either doctor.
In light of the above, this case may proceed to trial and defendant may prove its defense of lack of medical testimony through the testimony of its re peer doctor, [*3]
This constitutes the Decision and Order of the Court.
Dated: December 18, 2013
Katherine A. LevineJudge, Civil Court
ASN byin Court
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