In Metropolitan Diagnostic Med. Care, P.C. v. Erie Ins. Co. of N.Y., 54 Misc.3d 129(A) (App. Term, 2d, 11th & 13th Jud. Dists 2016), the MRIs that were the subject of the suit were prescribed by a physician who specialized in physical medicine and rehabilitation (PMR). The defendant insurer denied the claim based on a peer review report issued by a physician specializing in orthopedic surgery. At trial, defendant's peer review expert testified to the lack of medical necessity of the MRIs. The trial court ruled for the plaintiff, holding that as the peer review physician practiced in a different specialty than the prescribing physician, he was not competent to testify. The trial court further held that nevertheless, defendant's expert witness testimony was not credible.

On appeal, the Appellate Term held:

The fact that defendant's witness was an orthopedic surgeon and the MRIs at issue were prescribed by a doctor whose specialty is physical medicine and rehabilitation goes to the weight to be given to the testimony and not, contrary to the Civil Court's determination, to the witness's competency to testify as an expert … However, we find no basis to disturb the Civil Court's finding that the witness's testimony was not credible.