- The testimony of defendant’s doctor in not sufficient to meet the defendant’s burden of proof with regard to the affirmative defense of lack of medical necessity. Choicenet Chiropractic, P.C., v. Allstate Ins. Co., 2003 N.Y. Misc. LEXIS 413, 2003 NY Slip Op 50672[U] (App. Term 2nd Dept.)
- “It is not for a judge to second-guess a doctor who decides that a medical tests is necessary for his diagnosis and treatment when the only support for the denial is a peer review performed by a doctor who did not examine the patient. Thus, while it may be possible to make out a prima facie case for the affirmative defense of lack of medical necessity for services or treatment with a file-based peer review, it is not possible to do so with regard to a test performed within a reasonable time following an accident and prior to the patient even arguably reaching maximum medical improvement. … [T]he court cannot apply hindsight and conclude that the plaintiff’s doctor was wrong to prescribe the test because the findings on the test did not result in a material change in the course of treatment.“ Alliance Medical Office, P.C., v. Allstate Insuracne Company 196 Misc.2d 268; 764 N.Y.S.2dk 2003 N.Y. Misc. KEXIS 794
- “It is not for a judge to second-guess a doctor who decides that a medical tests is necessary for his diagnosis and treatment when the only support for the denial is a peer review performed by a doctor who did not examine the patient. Thus, while it may be possible to make out a prima facie case for the affirmative defense of lack of medical necessity for services or treatment with a file-based peer review, it is not possible to do so with regard to a test performed within a reasonable time following an accident and prior to the patient even arguably reaching maximum medical improvement. … [T]he court cannot apply hindsight and conclude that the plaintiff’s doctor was wrong to prescribe the test because the findings on the test did not result in a material change in the course of treatment.“ Alliance Medical Office, P.C., v. Allstate Insuracne Company 196 Misc.2d 268; 764 N.Y.S.2dk 2003 N.Y. Misc. KEXIS 794