May 14, 2013

Eagle Surgical Supply, Inc. v GEICO Ins. Co. (2013 NY Slip Op 50854(U))

Headnote

The relevant facts considered by the court in this case were that Eagle Surgical Supply, Inc. was seeking to recover first-party no-fault benefits as the assignee of a patient, Tristan Joris, and had brought a lawsuit against GEICO Insurance Co. The main issue decided was whether the supplies provided by Eagle Surgical Supply were medically necessary. The court found in favor of GEICO, stating that the supplies in question were not medically necessary, and dismissed the complaint. Eagle Surgical Supply appealed, arguing that the peer review report and underlying medical records should not have been admitted into evidence. The Appellate Term upheld the original judgment, stating that the lack of medical necessity had been properly established at trial through the testimony of GEICO's expert witness, and that Eagle Surgical Supply's objections lacked merit. Therefore, the judgment in favor of GEICO Insurance Co. was affirmed.

Reported in New York Official Reports at Eagle Surgical Supply, Inc. v GEICO Ins. Co. (2013 NY Slip Op 50854(U))

Eagle Surgical Supply, Inc. v GEICO Ins. Co. (2013 NY Slip Op 50854(U)) [*1]

Eagle Surgical Supply, Inc. v GEICO Ins. Co.

2013 NY Slip Op 50854(U) [39 Misc 3d 146(A)]

Decided on May 14, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 14, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2011-2601 K C.

Eagle Surgical Supply, Inc. as Assignee of TRISTAN JORIS, Appellant, —
against
GEICO Insurance Co., Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Helen C. Sturm, J.H.O.), entered July 26, 2011. The judgment, after a nonjury trial, dismissed the complaint.

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, limited to defendant’s defense of lack of medical necessity. Following the trial, the Civil Court found that defendant’s doctor’s testimony had demonstrated that the supplies in question were not medically necessary. Consequently, a judgment was entered in favor of defendant dismissing the complaint.

On appeal, plaintiff does not challenge the substance of defendant’s expert witness’s testimony. Instead, plaintiff objects to the admission into evidence of a peer review report and the underlying medical records. At a trial on the issue of medical necessity, a peer review report is not admissible to prove the lack of medical necessity. Rather, that issue is to be resolved based upon the testimony given by the medical experts (see A-Quality Med. Supply v GEICO Gen. Ins. Co., ____ Misc 3d ____, 2013 NY Slip Op 23088 [App Term, 2d, 11th & 13th Jud Dists 2013]). In this case, defendant properly established the lack of medical necessity at trial through the testimony of its expert witness. Thus, plaintiff’s contention that reversal is warranted because the court admitted the peer review report into evidence lacks merit. [*2]

The remainder of plaintiff’s objections similarly lack merit (see Park Slope Med. & Surg. Supply, Inc. v Travelers, 37 Misc 3d 19, 22-23 [App Term, 2d, 11th & 13th Jud Dists 2012]; Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the judgment is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 2013