Opinion
No. 2011–779 K C.
2013-05-14
RADIOLOGY TODAY, P.C. as Assignee of Briant Joseph, Respondent, v. TRAVELERS INSURANCE COMPANY, Appellant.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered March 26, 2010. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $912.
Present: ALIOTTA, J.P., PESCE and RIOS, JJ.
ORDERED that the judgment is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held solely with respect to defendant's defense of lack of medical necessity. Defendant's expert witness identified her peer review report and conclusorily testified that the radiology services at issue were not medically necessary. Although the court allowed the peer review report into evidence for the limited purpose of showing that it was prepared by defendant's expert witness, it did not consider the contents of the report. The court granted plaintiff's motion for a directed verdict and awarded judgment to plaintiff, holding that defendant had not established a lack of medical necessity for the services at issue.
Since defendant's expert's testimony did not include a factual basis or medical rationale for her opinion, it was insufficient to establish that there was a lack of medical necessity for the services rendered ( see A–Quality Med. Supply v. GEICO Gen. Ins. Co ., Misc.3d, 2013 N.Y. Slip Op 23088 [App Term, 2d, 11th & 13th Jud Dists 2013]; PSW Chiropractic Care, P.C. v. Maryland Cas. Co., 32 Misc.3d 144[A], 2011 N.Y. Slip Op 51719[U] [App Term, 2d, 11th & 13th Jud Dists 2011] ). Additionally, 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 ( see A–Quality Med. Supply, Misc.3d, 2013 N.Y. Slip Op 23088). Thus, the Civil Court's determination that defendant had not established that the services at issue were not medically necessary, could have been reached under a fair interpretation of the evidence ( see Claridge Gardens v. Menotti, 160 A.D.2d 544 [1990] ).
As we find no basis to disturb the Civil Court's findings, the judgment is affirmed.