Judge Michael Ciaffa
Physician Bajaj sued insurer GEICO after a denial of her claim for services rendered to assignee Jara. The only issue for trial was the medical necessity of EMG/NCV testing performed by Bajaj. The denial was based on a peer review report from Dr. Florio. Yet, GEICO presented expert testimony from substitute Dr. Brown on the report. Brown agreed with Florio stating he saw nothing in the medical records supporting the necessity of the tests. Bajaj’s counsel argued as the report was not admitted into evidence, Brown should be precluded from giving testimony in support of the lack of medical necessity defense. The court rejected such contention noting the Appellate Term precedent appeared to require nothing more than testimony from a medical expert setting forth a facially sufficient factual basis and medical rationale for the defense, noting defendant’s expert need not be the same person who prepared the report. Thus, Bajaj’s motion for a directed verdict was denied. Yet, Bajaj testified she prescribed the tests to determine the existence and location of nerve damage in Jara’s lower extremities, not seen on an MRI, thus helping in the evaluation and treatment. The court concluded GEICO’s proof failed to meet its burden, awarding judgment in Bajaj’s favor.
