Velen Med. Supply Inc. v Travelers Ins. Co., 2008 NY Slip Op 28252 (Civ Ct City NY, Queens County)
Plaintiff opposed the motion, contending that pursuant to Wagman v. Bradshaw,292 AD2d 84(2nd Dept. 2002). Dr. Corcoran’s testimony must be disregarded by this court since it was based upon medical records and reports that were not in evidence and for which there was no evidence presented regarding their reliability. (See Hambsch v. New York City Tr. Auth., 63 NY2d723[1984]) Defendant countered that this court should apply the ruling of the Appellate Term, First Department in Cross Contintental Medical, P.C. v. Allstate Insurance Company 13 Misc 3d 10 (2006), wherein the court held that a “plaintiff may not be heard to argue that defendant’s expert opinion was not derived from a professional [,] reliable’ source or to otherwise challenge the reliability of its own medical records and reports.” (Id., at 11).As to the Wagman issue, an initial interpretation of the testimony in relation to that case seems to indicate that the defendant offered no evidence as to the reliability of the documents relied upon, therefore requiring the court to disregard the testimony and thereby find in favor of the Plaintiff. However, in addition to Cross Continental Medical P.C., supra , several recent cases in both the First and Second Departments, including the First Department’s Appellate Term, seem to indicate, that, at least in the context of no fault first party benefits, a plaintiff may not challenge the reliability of its own medical records which were relied upon by the insurer in preparing a preparing a peer review report.
First, in Home Care Ortho. Med. Supply, Inc. v. American Mfrs. Mut. Ins. Co.,
14 Misc 3d 139(A) [ App. Term, 1st Dept. 2007], the Appellate Term First Department reversed a judgment in favor of the plaintiff in an action, as in the case here, brought by a medical goods supply company to recover assigned, first party, no fault benefits. The lower court’s decision was at least partially based on its preclusion of the insurer’s expert’s testimony because it relied, at least in part, on a review of the assignors’ medical records. Following its previous decision in Cross Continental Medical, P.C., supra ,the court held that “[P]laintiff may not be heard to challenge the reliability of the assignors’ medical records and reports, which, in response to defendant’s verification requests, were affirmatively relied upon by plaintiff as proof of claim.”
Following the decision in Home Care Ortho Med. Supply, Inc., supra , Judge Peter Sweeney of the Civil Court of the City of New York rejected the plaintiff’s contention that the insured’s experts should have been precluded from basing their professional opinions, in part, on the information obtained from plaintiff’s assignors during independent psychological examinations. Judge Sweeney went further in finding that ” the holding in Home Care Ortho. Med. Supply, Inc. is consistent with the legislative policy reflected in the numerous provisions of the No-Fault Law which provide for the prompt verification and disposition of claims (Motor Vehicle Acc. Indemnification Corp. v. Aetna Cas. & Sur. Co., 89 NY2d 214, 222 [1996]; Presbyterian Hosp. in City of New York v. Maryland Cas. Co., 90 NY2d 274, 281 [1997]; Dermatossian v. New York City Tr. Auth., 67 NY2d 219, 224-225 [1986] ; Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co. 827 NYS2d 217, 220 {35 AD3d 720} [2nd Dep't 2006] )” ( Primary Psychiatric Health,P.C. v. State Farm Mutual Auto Ins. Co., 15 Misc 3rd 1111(A) [ Civil Court, City of New York, Kings CO. 2007]).
Finally, in a very recent case, Andrew Carothers, M.D., P.C. v. Geico Indemnity Company, 18 Misc. 3rd 1147(A),[Civil Court, City of New York, Kings CO.,2008]), the court, also citing Cross Continental P.C., supra , actually permitted the Plaintiff’s medical records, which at least in part formed the basis of its peer review, to be admitted into evidence through its Claims Examiner as Defendant’s business records. That court rejected Plaintif’s argument that their admission was inappropriate since the Claims Examiner was incompetent to testify as to the reliability of the records as she had testified that they were received by the defendant from the [*4]treating physicians and she had no knowledge of how these doctors created or maintained their records in the regular course of business. While this court may not have extended the business records exception to the hearsay rule to such an extent, the holding is consistent with the holdings in the other cases referred to above.
As such, this court finds that the defendant has presented sufficient evidence to establish a defense based upon a lack of medical necessity, thus shifting the burden to the Plaintiff to present its own evidence of medical necessity (see West Tremont Medical Diagnostic, P.C. v. Geico Ins. Co. , 13 Misc. 3rd 131(A) [ App. Term, 2nd & 11th Jud. Dists. 2006]). Plaintiff presented no evidence or testimony in this matter, choosing instead to rely upon its argument made above and its cross examination of Dr. Corcoran. Without more, this court finds that Plaintiff has failed to refute Defendant’s expert witness testimony and has failed to produce rebuttal evidence to prove the medical necessity of the medical supplies provided to its Assignor.